Trademark Search Frequently Asked Questions
Does a Trademark Search tell me definitively if a mark
is available?
While trademark searches can provide you with extensive
information regarding other marks may be in use in commerce, and
the status of those marks (i.e., registered, pending or
abandoned), searches do not provide answers as to whether your
trademark will be registrable with the USPTO. An Examiner at the
USPTO must examine your trademark to determine availability for
use and registration. The Examiner will evaluate whether your
mark conflicts with a previously existing mark and/or whether it
is sufficient to meet the minimum requirements to become a
federally registered trademark.
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What type of information will I receive when I perform a
U.S. full trademark search?
You will receive (1) information regarding marks that are used
in commerce, but not registered on a state or federal level
(common law marks); (2) information regarding marks that are
registered in any one or more U.S. states; (3) information
regarding marks that appear within the USPTO database (may
include pending, registered, abandoned marks).
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What are pending marks?
These are marks that have not yet been registered with the
USPTO, but are either in the queue to be registered, or are on
hold pending Examiner inquiry or opposition from a third party.
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Is it advisable to conduct a search before I apply to
register a trademark?
A search is not required to be performed prior to applying for a
trademark registration. However, a search can be extremely
beneficial in determining the availability of your trademark. A
comprehensive trademark search can provide you with information
regarding registered marks, marks that are currently pending
with the USPTO, marks that are registered or pending on state
databases, as well as common law marks (which include, for
example, company/business names, DBAs, industry information
regarding businesses, etc.).
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What are "common law" rights?
Common law trademarks (unregistered trademarks) generally
provide protection only in areas in which the trademarks have
actually been used; thus, providing only a limited scope of
protection. A trademark may have rights associated with it even
though the mark has not been registered with a state or the
federal government. The term "common law" indicates that the
trademark rights are not governed by statute. Common law
trademark rights have been developed under a judicially created
scheme of rights governed by state law.
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What are abandoned marks?
An application that has been declared abandoned is "dead" and no
longer pending with the USPTO. Abandonment occurs under several
circumstances. The most common reason for abandonment is when
the Examining Attorney at the USPTO rejects an application and
requires the application to respond. If the applicant's response
to the Office action is not received in the USPTO Office within
six months of the mailing date of the Office action, the
application will be declared abandoned. Another instance is when
the USPTO does not receive a Statement of Use (or request for an
extension of time to file a statement of use) from an applicant
within 6 months from the issuance of a Notice of Allowance).
Applications abandoned for failure to respond to an Office
Action or a Notice of Allowance can be revived or reinstated in
certain circumstances.
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What are dead marks?
A dead or abandoned status for a trademark application means
that specific application is no longer under prosecution within
the USPTO, and would not be used as a bar against your filing.
It does not necessarily mean that there are not other marks that
might be in use in commerce (i.e., certain marks can be dead or
abandoned, but are still in use in commerce). Further, the
trademark examining attorney could cite a dead mark against a
trademark application in certain circumstances, such as the dead
mark was mistakenly abandoned by the USPTO.
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What are live marks?
A "live" mark is one wherein the application is currently under
prosecution within the USPTO. A "live" mark could be used as a
bar against a subsequently filed trademark application.
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Why is a trademark search necessary?
A search is not required to be performed prior to applying for a
trademark registration. However, a search can be extremely
beneficial in determining the availability of your trademark. A
comprehensive trademark search can provide you with information
regarding registered marks, marks that are currently pending
with the USPTO, marks that are registered or pending on state
databases, as well as common law marks (which include, for
example, company/business names, DBAs, industry information
regarding businesses, etc.).
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What is federal protection of a trademark?
Federal registration, a system created by federal statute, is
not required to establish common law rights in a mark, nor is it
required to begin use of a mark. However, federal registration,
if available, is almost always recommended and gives a trademark
owner substantial additional rights not available under common
law.
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Is a business name the same as a trademark?
A business name, or the name that a business uses to identify
itself, is often referred to as a "trade name." A business name,
as distinguished from a trademark, is used in connection with a
legal or tax entity (a corporation or LLC, for example). A
trademark, on the other hand is used in connection with a
product or service, which may, or may not, be the same as an
entity's business name. A business name is not considered a
trademark or entitled to protection under trademark laws unless
it adorns a product or service.
Trademarks registration and trademarks search
services nationwide. ... Form an LLC. Trademarks.
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Order Now ... registered, owners of UN-REGISTERED
trademarks still have legal rights to the
EXCLUSIVE use of their
What is a "common law trademark right?"
Once a trademark is successfully registered with the USPTO,
certain statutory rights are created protecting the
trademark owner. However, the general rule often referred to
as "first-in-time"--The first person or entity to use a
trademark in commerce receives common law protection for the
use of that trademark. Thus, this "first person" can prevent
others from using that same trademark...even if this "first
person" never registered the mark. Therefore, conducting a
Comprehensive Trademark Search is vital in helping you make
the determination of whether to proceed forward with your
trademark registration...even if the mark is NOT registered
with the USPTO by another person or company.
Although the majority of trademarks in existence are
NOT registered, owners of UN-REGISTERED trademarks still
have legal rights to the EXCLUSIVE use of their trademarks.
Therefore, you must search ALL OF THE FOLLOWING public
records sources BEFORE submitting your trademark
registration application.
- Registered Federal Trademarks Principal Register.
- Registered Federal Trademarks Supplemental Register.
- Pending Federal Trademark Registrations.
- State Trademark Registrations (NATIONAL--for EACH
state).
- Unregistered Trademarks (Common Law Trademarks).
- County Filings (NATIONAL--for EACH state).
- City Records (NATIONAL--for EACH state).
- State Licensing & Regulatory Boards (NATIONAL--for
EACH state).
- The Yellow Pages (NATIONAL--for EACH state).
- The White Pages (NATIONAL--for EACH state).
- Domain Name Registrars.
NOTE: Searching Public records for multiple states and
jurisdictions is an ENORMOUS task. Many public records search
firms (such as MyCorporation.com) can perform the search for you
and provide you with a national report for less than $200.
