So you've come up with a creative name for your business or your product. You have thought hard about it, and probably feel a vested interest in this name. The next step in protecting your name is to conduct what is known as a trademark clearance search.
What is a trademark clearance search?
A trademark clearance search-also known as a trademark availability search-is a quick search to determine any obvious problems with the trademark you have chosen to adopt. A trademark search should be looked at as a risk assessment of adopting a particular trademark to brand your company.
A clearance search consists of searching through various public databases to see if there are any identical or closely related trademarks for goods and services that are similar to yours.
For example, Brewery A chose CreativeBeerName for its new American Pale Ale. Brewery A should search the following public databases to assess the risk of adopting and branding under the CreativeBeerName trademark:
1) the United States Patent and Trademark Office database (USPTO);
2) Google, Yahoo, or any other search engine; and
3) beer and brewery specific websites such as Ratebeer.com, beeradvocate.com, or untapped.com
It is important to note that conducting a clearance search does not necessarily mean the trademark is available; it only eliminates some of the risk of adopting the trademark.
Why is a search important?
Despite the fact that a clearance search-and even a comprehensive search performed by an attorney or third party such as Thomson & Reuters-cannot give a trademark owner 100% peace of mind in adopting a trademark, it is an essential step for the trademark owner to take.
Adopting a trademark without conducting some kind of search is akin to walking through a mine field, blindfolded. Seems dramatic, right? Consider this scenario:
Brewery A decides to skip conducting a trademark search for CreativeBeerName. Brewery A spends $1,000 on a federal trademark application and $10,000 on marketing its new CreativeBeerName American Pale Ale. Six months into its branding campaign, Brewery A finds out there is a CreativeBeerName Stout federal trademark registration owned by Brewery B. The Trademark Office rejects Brewery A's application and Brewery A gets a cease and desist letter from Brewery B, demanding Brewery A to immediately stop use of the CreativeBeerName trademark.
Had Brewery A conducted a clearance search, it most likely would have found-either through the USPTO or Brewery B's website showing its CreativeBeerName Stout-the conflicting trademark, and would have saved itself a lot of time and money. Most importantly, Brewery A spent six months gaining good will and a reputation in the market place for a name it didn't own and could no longer use.
Considering the risks involved, running a trademark clearance search is an absolute must before you adopt a trademark and begin using it in the marketplace. For particularly tough names and search results, consider having an experienced trademark attorney help you determine the risks involved with moving forward with a name.
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