LEGAL GUIDE
Written by attorney Ian Donald Titley

Is My Trademark Available?

That is a great question which is better to ask before you invest a lot of time and effort in the name, but often isn't asked until after the investment has been made. Lots of factors affect whether your trademark is available.

If your name is generic (e.g. "The Grocery Store" for a grocery store) you will never be able to protect it. If it is a based on a family name or a geographic name you may only be able to register it after you've used it for several years without conflict. If your name is confusingly similar to another name that's already being used, you may need to pick a new name.

Of course sometimes we can overcome potential obstacles. I've helped a couple clients leapfrog over possible conflicting uses by buying even older trademark registrations from companies that were shutting down. Trademark lawyers talk a lot about "confusing similarity."

Unlike patent law where very small changes can be enough to make a difference, trademark infringement occurs when names are close enough to cause confusion regarding whether the goods or services come from or are affiliated with the same source. Delta Airlines and Delta Faucets can co-exist because no one thinks there is any confusion. But the record company formed by the Beatles - Apple, and Apple Computer fought a long series of trademark battles over use of the Apple name. There were a series of settlement agreements and payments from the computer company to the record company. Although no one was likely to confuse Apple Computer with the Beatles, it was reasonable that people might be confused into thinking the two were connected.

How can you tell if your trademark is available? First be aware and informed of your competition. Next conduct an internet search to see if any obvious uses show up. When selecting a brand name don't forget to see if the domain name is available. If it is not available make sure you check out the website. If it is totally unrelated you may still be able to use your proposed name - unless the name leads to a porn site. Finally you will want to do some initial searching on the US Trademark Office website: www.uspto.gov. There are some tricks to the trade in using the Trademark Office search functionality, but you should be able to find registrations that are "direct hits" with your proposed name.

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