Is My Trademark Available for Registration?

This article originally appeared at: https://www.sarahsshepard.com/blog/tm-available

Any Alabama business lawyer may strongly advise you to register your business’s trademark as early as the brand’s use.

Of course, knowing that this is a critical step in safeguarding your brand identity, intellectual property , and business is the easy part.

The challenging part is conducting the proper research to ensure that your mark is available.

However, the longer you go without establishing your brand and potentially registering your trademark, the more likely your logo — or something confusingly similar — will pop up in one or more trademarking databases.

In this article, we will discuss the importance of registering your trademark and how to make sure that your trademark is available for registration.

Read on to learn more.

What’s the Point of a Registered Trademark? Simply, your trademark represents your brand’s identity. It’s the mark that consumers will associate with your goods and services without needing additional information as to who you are or what you’re offering.

While your trademark is essential to your marketing strategy and your brand identity, the downside is that they don’t work on the honor system. In other words, if your trademark is just out there circulating in the commercial stratosphere without legal protection, anyone else can copy it without consequence.

Or worse, they can steal it, register it as their own and then take legal action against you for trademark infringement .

Registering your trademark with the United States Patent and Trademark Office (USPTO) can be essential to protecting your brand identity and your business as a whole.

Making Sure Your Trademark Is Available for Registration Before you start filling out your application to register your trademark, which costs both time and money, you need to understand that submitting the application itself does not guarantee approval by the USPTO.

The intellectual property attorneys that work for the USPTO are comprehensive when it comes to examining new trademarks. They have to be to avoid any unintentional trademark infringement and can therefore refuse or deny applications for several reasons, including the following most common reasons:

The likelihood of causing confusion with another registered trademark, service mark, or a trademark pending registration. This includes common law trademarks (™), and Intent-to-Use (ITU) trademark applications

A mark that’s not suitable for trademarking

A poor description or an inaccurate description of the goods or services being offered

The geographical description is poor or inaccurate (for example, naming your product after a state or location in which it is not actually produced)

The description or phrase is ornamental

Essentially, trademarks allow businesses exclusive rights and use of their brand name and logos. Therefore, anything that may cause confusion with another trademark that is inaptly described or doesn’t meet the trademark standards will be rejected 100% of the time.

In the same sense, while your brand name is prohibited from misrepresenting your business, it also cannot be purely descriptive, nor can it be generic. So, for example, you can’t register a restaurant trademark with a name like “Pizza Restaurant” because it’s generic and purely descriptive.

Additionally, surnames and geographic names alone do not meet the trademark criteria either. For example, you’ll have a difficult time registering a phrase like “East Coast.” Still, if it’s set within a longer name like “East Coast Surf Life,” then you’ll have a better chance of approval.

Lastly, ornamental phrases include slogans such as “I like to party,” however the source of the motto isn’t included. It is therefore considered ornamental as it doesn’t identify the basis of the product.

Now, let’s talk about the steps you need to take to ensure that your trademark registration is available:

Start With a Basic Web Search Google is the best place to start as it’s the broadest. All you need to do is type your intended mark into the search bar, and you’ll get pages upon pages of potential similar or identical uses.

If you intend to trademark a phrase, search that phrase with and without quotation marks. Suppose you’re trying to trademark a specific logo as a brand source identifier. In that case, you can check it against Google’s image search by dragging the photo into the search bar. The search engine will pull up any similar images.

You can also conduct these searches across social media. Of course, you won’t get as good a return as you would with a search engine. Still, it may help you discover brands under the radar and developing — and using a mark similar to yours.

Find that your intended trademark is already in use, whether similar or identical. Then, you’ll know that you need to start over. However, search engines and social media are not comprehensive databases — they’re merely a quick and accessible starting point.

Check the Fictitious Name Database Unfortunately, there are many scammers out there taking legal ownership of assumed business names. They try to squeeze money out of unknowing new business owners that haven’t yet trademarked their brand.

It’s a good idea to check to see if your desired brand name is already on the registered business name or d/b/a lists within your state and county.

This list will provide names that you won’t be able to find in other databases. If you find that your intended brand name is listed in this database, you’ll need to come up with a new one.

Follow Through with a TESS Database Search After you’ve gone through the essential searches, it’s time to hit the registered trademark database. The USPTO’s official database is the Trademark Electronic Search System (TESS), and it’s available for public use. Hence, all you have to do is visit their website to conduct your trademark searches.

The TESS contains the records of all active and inactive trademark registrations and pending applications, ITUs, etc. However, it’s essential to remember that not all valid and protected trademarks are registered with the USPTO. This is why you must also search through the state, country, and global databases (depending on your intended reach).

The search for trademark availability can be long and tedious. The USPTO’s phrase “likelihood of confusion” is a somewhat subjective one. This means you not only have to search for your intended mark but any potential iterations of your mark.

After conducting a thorough search through TESS, it’s a good idea to enlist the help of an experienced Huntsville intellectual property lawyer. An attorney can help you find any possible iterations of your intended mark to avoid any potential likelihood of confusion .

Contact us today to schedule a consultation with lawyer Sarah S. Shepard or another experienced Huntsville trademark attorney to ensure that your intended trademark is available for registration so we can register it immediately.

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