The first per­son or com­pany to use or reg­is­ter a dis­tinc­tive trade­mark has rights in that mark. If a sec­ond per­son uses a trade­mark that cre­ates a likeli­hood of con­fu­sion with the first person’s trade­mark, then the sec­ond per­son may have to change the mark and pos­si­bly pay dam­ages to the first user. A trade­mark search helps avoid these prob­lems. It also pre­vents you from pay­ing fees for rejected applications.

Once you’ve selected a name, a trade­mark search looks for the same or sim­i­lar marks, whether reg­is­tered or unreg­is­tered, to your name. The marks you’re look­ing for are marks used any­where in the coun­try that are used in a way that might cause con­fu­sion. Some­times these searches are like look­ing for a nee­dle in a haystack. Other times it’s like look­ing for a steel beam in the haystack.

For­tu­nately there are many resources to look for those marks that might con­flict with the mark you selected. The main sources are:

  • fed­er­ally reg­is­tered trade­marks –
  • state reg­is­tered trade­mark databases
  • the inter­net – domain name searches, Google searches, etc.
  • pub­li­ca­tions – yel­low pages, trade pub­li­ca­tions, other databases

If you get a direct hit in your search, that’s great. Your search has been made easy and you’ve avoided many headaches down the road. But you often don’t receive a direct hit. That’s where the search becomes an art. You search for homonyms, syn­onyms, pho­netic equiv­a­lents, wild cards, trun­ca­tions, etc. The one thing you can count on is that your search will be incom­plete no mat­ter how thor­ough you are. You just have to live with and accept a small degree of uncertainty.

You can always turn to the pros and hire a pro­fes­sional search firm to con­duct the search for you. The pros know which data­bases to search and have mastered the art of search­ing. Some even have their own pro­pri­etary data­bases. They will not give you legal advice, but they will give you a report of their hits. If you’re going to spend a lot of money to cre­ate your brand and estab­lish your mark, then it makes sense to pay the pros to con­duct the search. It also makes sense to use the pros if you’re reg­is­ter­ing a graphic design.

Gen­er­ally speak­ing, if you plan on doing busi­ness on the web to a national mar­ket, then you should do a more exten­sive search. If you only plan on using the mark in one state or small region, the less exten­sive your search needs to be. If you don’t have a dis­tinc­tive name, you should still do a check to avoid a claim of unfair trade practices.