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Clearing a name before filing

How to search for a conflicting trademark before you file

A name can look free and still belong to someone. The record of who got there first is scattered across federal and state registers, business listings and plain use in the market, so a proper search means opening more than one drawer.

  • Business names
  • Common law
  • Design codes
  • Directories
  • Domain names
  • Federal register
  • Marketplaces
  • Search engines
  • Social handles
  • State registers

The main records

Where a conflicting mark can turn up

No single record holds every trademark. Each of these answers a different question about who is already using a name.

  • Federal

    The USPTO search

    The federal database of trademark applications and registrations. Entries show whether a mark is live or dead, and what goods or services it covers.

  • State

    State trademark records

    States keep trademark registers of their own, separate from the federal one. A mark can sit on a state register and appear nowhere in the federal database.

  • Common law

    Use with no registration

    Rights can grow from using a mark in trade, registered or not. A rival of this kind shows up in the market rather than in any register.

  • Help

    Tools and services

    Free databases, paid search reports and an attorney’s clearance opinion differ in how far they reach and in what they can tell you about the result.

The call slip

What to have in hand before the first search

A search is only as wide as the question behind it. These are the details that decide what to look for.

The name as you would use it
The exact wording, including any second word that would always travel with it.
Its near neighbours
Other spellings, plurals, run-together forms and words that sound the same.
What you sell under it
The goods or services, described plainly, along with the things closely related to them.
The logo, in words
What the design depicts, since images are indexed by what they show rather than by name.
Where you trade
The states and markets you serve now and the ones you expect to reach.
Translations
What the name means in other languages, and any foreign word that means the same thing.

Reading a card

Two names can clash without matching letter for letter

An exact-match search misses most of what matters. The test is whether customers could be confused, and that turns on more than spelling.

  • Sound

    Names that sound alike

    Different spellings of the same sound read as one name when spoken aloud.

  • Look

    Names that look alike

    A changed letter or two can leave the overall appearance of a mark much the same.

  • Meaning

    Names that mean the same

    Synonyms and translations can carry the same impression in a customer’s mind.

  • Trade

    Goods and services that sit close together

    The same word can live peacefully in unrelated trades, and collide in neighbouring ones.

A to S

Places to look, in drawer order

Some of these are formal records and some are simply where businesses show up. All of them can hold an earlier use of a name.

  • Business name records

    State lists of registered companies. They record entity names, which is a different thing from trademark rights.

  • Common-law use

    Shops, signs, menus and packaging, wherever a name is used in trade with no filing behind it.

  • Design codes

    The federal index that files logos by what they depict, so images can be searched without a word to go on.

  • Directories

    Trade association lists and industry guides, where smaller firms in one line of work tend to appear.

  • Domain names

    Web addresses in use, which can point to a business that never registered anything else.

  • Federal register

    The USPTO’s record of applications and registrations, searched by word, owner and goods or services.

  • Marketplaces

    Online stores and app listings, where a product name can be well established with no website of its own.

  • Search engines

    A general web search, which picks up uses that no formal list has caught.

  • Social handles

    Account names on the main platforms, often the first public trace of a young business.

  • State registers

    The trademark records each state keeps, usually searched through its own office.

A clean search is not a guarantee

Unregistered uses can stay hidden, and a recent application may not show up straight away. A trademark attorney can give a legal opinion on one particular name.

Articles on each of these places are on the way.