Cecily Zamora
A trademark common law search is a process of searching for unregistered trademarks to ensure that a new trademark does not infringe on existing common law trademark rights. Unlike registered trademarks, which are typically protected and enforced by federal or state governments, common law trademarks are acquired through the use of a mark in commerce within a specific geographical area. Conducting a comprehensive common law trademark search involves utilizing various sources, including the internet, public records, newspapers, and searching for registered trademarks in databases such as the United States Patent and Trademark Office (USPTO). Given the complexity and time-consuming nature of common law trademark searches, it is often recommended to seek professional assistance from trademark lawyers or specialized platforms.
| Characteristics | Values |
|---|---|
| Purpose | To ensure your trademark is unique and to avoid being sued for infringement |
| What to search | Variations of your mark, including similar-sounding words, plurals, gender variations, and foreign translations |
| Where to search | USPTO database, the internet, public records, newspapers, state databases, business and domain names, historical news, business, legal and financial records |
| Who can help | Trademark lawyers, private trademark attorneys, law school clinic certification programs, Patent and Trademark Resource Centers |
| Cost | $25 to $500, depending on the quality of the search |
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What You'll Learn
Common law trademark rights
In countries with common law trademark rights, such as the United States, a trademark owner may enforce their exclusive right to use a mark in business operations even without it being federally registered. To pursue a lawsuit, the owner must prove priority of use, showing that they were the first to use the mark in a specific geographic area. Therefore, it is important to conduct a thorough trademark search before registering a trademark. This includes searching for registered trademarks as well as unregistered trademarks protected by common law.
There is no central database of common law trademark rights. Sources of this information can be spread out across the web, including apps and social media sites. A common law trademark search typically involves searching for similar marks on search engines such as Google and Bing, as well as business and domain name databases. It is recommended to hire a professional trademark lawyer to conduct a comprehensive search and provide legal advice. The cost of a common law trademark search can vary depending on the quality of the search, ranging from $25 to $500.
While common law trademark rights remain active as long as the unregistered mark is in use, they are limited to and enforceable only in the geographic area in which the trademark is used. Registering a trademark with the USPTO gives trademark holders additional rights, such as the right to file a lawsuit in federal court and prevent the importation of infringing goods. It also provides a legal presumption that the trademark owner has the right to use the trademark nationwide and prevents others from using a similar mark for similar goods or services.
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Searching trademark databases
When it comes to trademark databases, it's important to search for both registered and unregistered trademarks. Registered trademarks are typically listed in federal databases, such as the United States Patent and Trademark Office (USPTO) database, while unregistered trademarks, also known as common law trademark rights, are more challenging to search.
The USPTO database allows you to search for existing and pending trademark applications, helping you ensure your desired trademark isn't already taken. It's important to note that the USPTO database only includes federally registered trademarks and doesn't cover unregistered trademarks protected by common law. To perform a comprehensive trademark search, you should also consider common law trademark rights.
Common law trademark rights arise when a trademark is used without being federally registered. In countries with common law trademark rights, like the United States, a trademark owner can enforce exclusive rights to use a mark in business operations, even without federal registration. This means that even if you don't find an identical match in the USPTO database, your trademark could still infringe on an unregistered trademark in use.
To search for unregistered trademarks, you'll need to go beyond federal databases. Start with an internet search using search engines like Google and Bing to look for similar marks. Additionally, consider domain name searches, which can provide results for various top-level domains (TLDs). You can also explore other resources, such as apps, web, and social media platforms, as common law trademark rights can be spread across these digital spaces.
It's worth noting that searching trademark databases can be complex and time-consuming. If you feel overwhelmed, consider hiring a trademark lawyer or seeking professional help. They can provide valuable expertise and ensure you don't miss any potential conflicts. These services can be expensive, ranging from $25 to $500, but they offer a more comprehensive search and peace of mind.
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Hiring a trademark lawyer
A trademark common law search involves looking for unregistered trademarks that may conflict with the trademark you wish to register. This is important because, in some countries, a trademark owner may enforce their exclusive right to use a mark in business operations even without it being federally registered.
Performing a trademark common law search can be complex and time-consuming, so you may want to consider hiring a trademark lawyer to help you. Here are some reasons why hiring a trademark lawyer may be beneficial:
Expertise and Experience
Trademark lawyers are experts in trademark law and have experience prosecuting trademarks. They can guide you through the registration process, ensuring that your application is accurate and complete. They can also advise you on the legal scope of your trademark rights and how to monitor and enforce those rights.
Saving Time and Effort
The trademark registration process can be complicated and time-consuming. Hiring a lawyer can save you time and effort by handling the registration process on your behalf. They can conduct comprehensive clearance searches, prepare and file your trademark application, and respond to any legal correspondence from the relevant authorities.
Reducing Risks and Costs
A trademark lawyer can help identify potential conflicts with existing trademarks, including unregistered trademarks protected by common law. This can reduce the risk of costly legal problems in the future. Additionally, a lawyer can advise on the registrability of your trademark, helping you avoid the costs associated with an improperly prepared application.
Specialized Knowledge
Trademark law is a specialized area of law. Trademark lawyers have the knowledge and skills to navigate the complex legal processes and requirements, such as choosing the appropriate class of goods or services for your trademark. They can also assist in enforcing and maintaining your trademark rights, protecting you from infringement by other parties.
Cost Considerations
When hiring a trademark lawyer, it is essential to choose someone experienced in prosecuting trademark applications and handling proceedings. You can find a qualified lawyer by consulting U.S. telephone listings, the internet, or attorney referral services provided by bar associations. Online platforms like UpCounsel also offer access to experienced trademark lawyers who can assist you.
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Searching for similar marks
- Start with Trademark Databases: Begin your search by utilising trademark databases such as the United States Patent and Trademark Office (USPTO) database. This database contains information on federally registered and applied-for trademarks. You can also refer to international databases like TMview, which includes trademark applications and registrations from EU national IP offices, the EUIPO, and international partner offices outside the EU.
- State Trademark Databases: In addition to federal databases, don't forget to search state trademark databases. Each state in the US has its own trademark registry, and these can be accessed through the USPTO website.
- Internet Search Engines: Use search engines like Google and Bing to look for similar marks online. This includes searching for websites, apps, social media profiles, and domain names that may be using a similar mark. It is important to be thorough in your online searches, as common law trademark rights can arise from the use of an unregistered trademark.
- Consider Variations: Don't limit your search to identical marks. Look for variations that may be similar, including plurals, gender variations, foreign translations, and word patterns. For example, if searching for "Amazon," also look for "Amazon" and "Hamazon." This helps to identify potential conflicts that could lead to trademark infringement.
- Domain Name Search: Conduct a domain name search to check for similar marks across different top-level domains (TLDs) and generic, country-code, and new domains (gTLDs, ccTLDs, and nTLDs).
- Seek Professional Help: Trademark searches can be complex and time-consuming. If you feel overwhelmed or inexperienced, consider hiring a trademark lawyer or a trademark search service. They can provide comprehensive reports on similar marks and offer guidance on registration possibilities.
By following these steps and conducting a thorough search for similar marks, you can make more informed decisions about your trademark and reduce the risk of potential conflicts during the registration process.
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Registering a trademark
A common law trademark search involves searching for trademarks that are not officially registered but may still be protected by law. This includes trademarks that are in use by businesses or individuals, even if they do not have a federal registration. To perform a common law trademark search, you can start by searching the internet, including websites, apps, and social media sites, for any similar trademarks. You can also use tools such as Questel's Markify clearance platforms or hire a trademark lawyer to conduct a comprehensive search for you.
Once you have conducted a thorough trademark search and are confident that your desired trademark is not already in use, you can proceed with the registration process. The USPTO offers online trademark registration, where you can file an application and pay the associated fees. The Madrid Protocol allows trademark owners to file one application to register their trademark in multiple countries.
After registering your trademark, it is important to stay up to date with any maintenance filings and renewals that may be required to keep your trademark active. It is also a good idea to monitor for potential trademark infringement and take legal action if necessary. Trademark registration can be a complex process, and it is always recommended to seek legal advice from a qualified trademark attorney if you have any doubts or concerns.
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Frequently asked questions
A common law trademark search includes a number of resources to search for trademarks that aren't registered. This type of search is important to determine if your chosen trademark can be registered.
There is no central database of common law trademarks. Therefore, an effective common law trademark search must cover various sources, including the internet, public records, newspapers, and registered trademarks in the USPTO trademark database.
A common law trademark search is important to avoid being sued and to lawfully register a trademark. It ensures that your trademark is unique and doesn't infringe on any existing trademarks.
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