Trademark-SearchA trademark search is a critical legal first step in the process of trademark selection.  A trademark search determines whether a trademark is available for use.  As business attorneys, we believe that launching a new product, service, or business without first conducting a trademark search is flirting with disaster.

Simply stated, a trademark search is necessary because trademark rights under U.S. trademark law are granted on a first come, first served basis – i.e, first in time, first in right.  A business or individual entrepreneur obtains certain trademark rights by being the first in a given market either to use the mark or to file for (and successfully obtain) registration.  Once the business or individual entrepreneur obtains such trademark rights, it is entitled to stop newcomers from using similar marks in ways that are likely to cause confusion.

An individual or business must determine if the proposed trademark is actually available for federal trademark registration or if someone has already registered a similar or identical trademark. Failing to perform a trademark search to determine if a proposed trademark is available, could result in a waste of money and exposure to an unnecessary trademark infringement lawsuit.
Thus, any business or anyone who contemplates adopting a new mark faces the risk that another business or someone else may have already obtained rights to a similar market in the same trademark class.  A trademark search is the primary means of assessing that risk.  Although a trademark search is not 100% foolproof, it is definitely a worthwhile investment.

The standard that is used to determine if a potential trademark is available for federal trademark registration is whether the proposed trademark is likely to cause confusion with an already registered trademark. If there is a likelihood of confusion, then the proposed trademark should not be used as a trademark infringement action could arise from such use.

For more information on a listing of the 45 different trademark classes, see: