What Is a Federal Trademark Search?

A federal trademark search is a tool you can use to see if the mark you are using or are preparing to register is similar to other existing marks. These searches can help you protect your trademark and can help you avoid infringing on another person's mark. 

For instance, if there is a mark that closely resembles your own that has already been registered with USPTO, performing a trademark search can help you find this similar mark and avoid wasting time with the registration process.

What Is a Trademark?

A trademark is a way for you to distinguish your business from your competitors. Trademarks include anything you use to identify your business, including a name, a symbol, a word, or a device. Essentially, your trademark is your brand name. However, trademarks are different from the name of your business, which must be registered as a trade name.

Trademark Searching

Before you start using a new trademark, it is crucial that you perform a federal trademark search. If you fail to perform a search and infringe on an existing trademark, the owner of the mark can force you to stop using the mark, causing your business to waste time, effort, and money. 

With a trademark search, you will be searching for marks that are similar to your own that are currently in use by people. When you perform a full search, you will be able to check every area related to trademarks, including corporation and business names, business and company indexes, state trademarks, federal trademarks, and trade literature. 

The best way to search for federal trademarks is by using the USPTO Web Trademark Database. Before you use this search tool, it's a good idea to familiarize yourself with the system by reading the provided help screens and disclaimers.

The Trademark Electronic Search System (TESS) provided by the USPTO allows you to search for registered federal trademarks, federal trademark applications that are pending approval, and some dead trademarks. However, TESS does not have information about state trademarks or marks that are unregistered. Because you can search for registered and pending trademarks concurrently, you should reference the date on each search result.

Scope

When searching for federal trademarks, it's important that you consider the scope of your search, which should be wide enough to return results for:

  • Federal and state trademark registrations
  • Abandoned and pending applications
  • Expired trademark registrations
  • Common law trademark rights 

Your federal trademark search needs a wide scope because a person can have rights to a trademark even if it has not been registered. Unlike other intellectual property protections, trademark rights are based on usage. 

In addition to using online search tools like TESS, you should research trademarks in other areas. For instance, you can reference sources like press releases, registrations for internet domain names, and corporate information databases.

Availability Opinion

After you have performed a trademark search, you may want to contact a trademark attorney for an availability opinion. 

The attorney that you hire will review the information resulting from your trademark search, and then will tell you whether your desired mark can be legally registered and used. Even if your attorney determines your mark is available, it's likely your attorney will include cautions due to the complex nature of trademark law and searches. 

Receiving the opinion of a trademark attorney can be extremely useful, particularly if you've hired an attorney that is familiar with trademark law. In fact, it is common for major companies to request an availability opinion before filing a trademark. When you request an availability opinion, your trademark attorney will perform several tasks. 

First, they will review your research and determine if your desired mark conflicts with any existing trademarks. 

Second, your attorney will try to decide if it's possible that your potential consumers will confuse your trademark with that of another company, which is known as likelihood of confusion. Your attorney will compare your mark to other marks, looking for identical features. The only thing that matters is if the trademarks are the same, not the goods or services provided by the companies.

Benefits of Federal Trademark Registration

While it can be a complicated process, registering a federal trademark is almost always a good idea. Federal trademark registration provides protection for your intellectual property and allows you to bring legal action if someone infringes on your mark. This helps protect the reputation of your business and the monetary investment that you've made in marketing your brand. 

If you need help with performing a federal trademark search, you can post your legal needs on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.