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Should I search for similar trademarks before applying for my own?

UPDATED: December 16, 2019

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Searching for existing similar trademarks and trade names is the first step in the trademark application process. The search is simple and can be done at the U.S. Patent and Trademark Office website, a site designated for both word and pictorial searches for trademarks.

Reasons to Search for Similar Trademarks

Searching for similar trademarks before creating your own can help you save money. The search for trademarks and trade names is free, while the application filing fee is not. In fact, if you’re rushing your application or reserving the trademark, the filing fee could approach well over $500. In addition, any repetitive trademarks will be rejected by the trademark office and the filing fee will not be refunded. So this is a costly mistake for such a simple task.

Increasingly, case law indicates that failure to "adequately search" will leave the "innocent" trademark infringer liable to punitive damages and attorney's fees.

Can Searching Protect Me From Accusations of Trademark Infringement?

Searches cannot be definitive, because there may be small-scale users that do not turn up with typical search methods. In addition, the U.S. Trademark Office is often slow to process new applications, so there is always a gap between the time an application is filed and the time it first reaches a database where it will turn up in a search (generally, six to ten weeks or more). In order to provide improved service to trademark applicants, registrants, and the general public, the Patent and Trademark Office has implemented a pilot program called the "Trademark Assistance Center."

If you are having difficulty running a trademark search, there are a few tips you can follow for a more optimal search: “A complete search is one that will uncover ALL similar trademarks, NOT just those that are identical. In addition to studying the marks, you must also closely study the listed goods and/or services to determine possible “relatedness.”  

Searching for trademark availability is not the same as searching for a domain name to register a ".com" address, which focuses on exact or "dead on" hits, with no consideration given to similar names or use with related products and services. Also, if available, the domain name registrar may register a ".com" address on the same day as your search.  

As part of the overall examination process, the U.S. Patent and Trademark Office (USPTO) will search its database to determine whether registration must be refused because a similar mark is already registered for related products or services.”

Getting Help

If you are planning to trademark your intellectual property and are concerned that your search for a similar trademark is not thorough enough, consult with a trademark attorney for information about your specific situation.

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