Trademark Search in the US: How to check if your name is available

A preliminary search is a quick, initial check to see if any obvious conflicts exist. This search typically focuses on identifying exact matches to a proposed mark. It can be conducted using free online databases, such as the USPTO’s Trademark Electronic Search System (TESS). While not covering all cases, this search serves as an early warning system, allowing businesses to eliminate clearly unavailable names before spending time and money on more detailed searches or legal consultations.

A comprehensive search goes beyond exact matches to explore phonetically similar names, alternative spellings, and related goods or services that may lead to confusion. It may also involve examining databases beyond the USPTO, such as state trademark registries.

Comprehensive searches are typically conducted by trademark attorneys or third-party companies that specialize in trademark clearance. While these searches can be more expensive than a basic one, they provide crucial insights and help businesses avoid legal issues down the line. However, services like Trama offer a free lawyer’s check, delivering comprehensive results within 24 hours. This allows businesses to move forward with confidence, knowing they have reliable legal backing without the usual delay or cost.

Unlike registered trademarks, common law trademarks are established through use, not registration. This means that even if a mark is not registered with the USPTO, the owner may still have enforceable rights based on regional or market-specific use. Conducting a common law search is crucial for identifying unregistered trademarks. This search includes checking business names, online directories, domain names and social media accounts to see if others are already using a similar mark.

Before beginning a search, clearly define what you plan to trademark, whether it is a word, phrase, logo, or design. If the mark includes visual elements like logos or design, prepare to search for both textual and visual similarities.

It is also important to classify the goods or services associated with the trademark. The USPTO categorizes trademarks into "International Classes," which group products and services into specific categories. This classification will affect how your search is conducted and how your trademark is evaluated in relation to others.

The next step is to use the USPTO’s TESS to conduct a search of federally registered trademarks and pending applications. TESS offers multiple search options, including basic word searches and advanced searches that allow for complex queries combining different elements of a mark. It is important to search for not only exact matches but also marks that may sound or look similar to your proposed trademark. 

If your business plans to expand internationally, it’s also important to conduct searches beyond US databases. The World Intellectual Property Organization (WIPO) maintains an international trademark database, and countries like the European Union have their own trademark systems (such as the European Union Intellectual Property Office). Ensuring that your mark is not in use internationally will help prevent conflicts in foreign markets and protect your brand globally.

The USPTO uses the "likelihood of confusion" standard to determine whether a new trademark may infringe on an existing one. This means that trademarks don’t have to be exact matches to conflict; they can be rejected if they are too similar in appearance, sound, meaning, or commercial impression.

For example, two trademarks that differ in spelling but sound the same when spoken could be considered confusingly similar. Likewise, a logo that uses a similar color scheme and layout as an existing trademark might also create a likelihood of confusion. It is essential to think broadly when conducting your search, looking for both obvious and subtle similarities.

Trademark protection is strongest for unique and distinctive marks. Trademarks fall into categories based on their distinctiveness, ranging from "fanciful" or invented words (like "Exxon") to "generic" terms that describe the product or service (like "Bicycle" for bicycles). Fanciful, arbitrary, and suggestive marks have the strongest legal protections, while descriptive marks must acquire secondary meaning to be protected.

When conducting a search, assess whether your mark is distinctive enough to stand out in the marketplace. The more unique it is, the easier it will be to protect.

A trademark search is a critical part of the trademark registration process, helping businesses avoid legal conflicts and build a strong, distinctive brand. From federal databases to common law sources, conducting a thorough search requires attention to detail and a broad understanding of what may constitute a trademark conflict. By investing some time into this crucial first step, businesses can ensure that their brand is protected and free from potential legal challenges.