MightyRecruiterTrademarks are the industry-standard method of claiming ownership of a word, phrase, design or symbol. According to the national trademark office, trademarking clarifies the source of goods or services and distinguishes between suppliers to increase clarity for consumers. Many businesses use trademarks to protect newly-developed products and services and to build trust in their brand name. Applying for a trademark requires a good deal of prior research to ensure that the mark being sought after is not already in use by another entity. While there are some instances in which two companies may use the same wording, it is imperative that you search for any overlap in phrasing and industry prior to making application.
USPTO Search
Trademarks were designed to decrease consumer confusion. When companies have a unique name or slogan, it clearly identifies them and sets their products apart from the rest of the suppliers. In order for this process to work, there must be little to no overlay in trademarked names. A search of the United States Patent and Trademark Office (USPTO) records will reveal all the nationally registered trademarks and should be the beginnings of any trademark research. Records may be perused online at its website, www.uspto.gov. These types of trademarks protect the owner against any national use of his or her mark, commercially or otherwise. Using a federally registered trademark without permission can result in legal battles with large monetary damages plus the payment of attorney’s fees.
Checking State Records
Once you have double-checked the federal database, it’s time to research state records to check for duplicates. The Secretary of State’s office will either be responsible for the state trademark database or be able to direct you to the independent office that handles recordkeeping and registrations. Several independent websites search for marks being used in every state or those certified in multiple locations. Use the ICANN (Internet Corporation for Assigned Names and Numbers) website to search for domain names and ownership when planning your online presence.
Searching for Unregistered Marks
Unregistered marks are many, varied and are defined as anything that is not federally registered. The majority of trademarks are these “common law” types and are not as easily searched for as nationally-recognized registrations. There will likely be several existing marks that are similar to yours and understanding the overlap is essential to avoiding expensive legal tangles.
If a mark is currently in use for commercial purposes by a company in a very different industry, you may still be able to use the name; however, if there is overlap of name and industry, it is usually best to brainstorm a new, more original name or tagline. Geographic separation is sometimes, though not always, enough to allow the use of similar language, but it can also create gray areas and the potential for problems.
If two companies in different parts of the country use the same name and then decide to expand their online presence, overlap and issues may arise. The increase of online commerce can make finding an available name difficult, and while brick and mortar stores in the same industry but differing states or regions can usually exist simultaneously without any problems, if both decide to expand their business to a website, a sticky situation may ensue.
Disagreements regarding first use, both physical and in the online marketplace, are common in these situations. In order to avoid legal issues, it is best to perform a thorough online search before registering your mark or using a name online. Should confusion arise, an attorney can help sort out the details of whether a name is available for trademark or local use.
Trademarks are an important part of protecting business interests and must be carefully researched at national, state and local levels in order to offer the most protection. Seek legal advice prior to attempting to trademark any names that already have a local or online presence.
Legal Disclaimer
The content on our website is only meant to provide general information and is not legal advice. We make our best efforts to make sure the information is accurate, but we cannot guarantee it. Do not rely on the content as legal advice. For assistance with legal problems or for a legal inquiry please contact you attorney.