If you want to find out whether the name you've chosen for your Web site or the trademark you've chosen for your products or services is available, you'll need to conduct a trademark search--an investigation to discover potential conflicts between your desired mark or domain name and any existing marks. Ideally, the search should be done before you begin to use a mark; this will help you avoid the expensive mistake of infringing a mark belonging to someone else.

Why do I need to conduct a trademark search?

The consequences of failing to conduct a reasonably thorough trademark search may be severe, depending on how widely you intend to use your mark and how much it would cost you to change it if a conflict later develops. If the mark you want to use has been federally registered by someone else, a court will presume that you knew about the registration--even if you did not. You will be precluded from using the mark in any context where customers might become confused. And if you do use the mark improperly, you will be cast in the role of a " willful infringer." Willful infringers can be held liable for large damages and payment of the registered owner's attorney fees; they can also be forced to stop using the mark altogether.

My business is local. Why should I care what name or mark someone else in another part of the country is using?

Most small retail or service-oriented business owners well know the mantra for success: location, location, location. But as the Internet takes firm hold in the late 1990s, the concept of location, while still central to business success, takes on a whole new meaning. Instead of being rooted in physical space, businesses are now required to jockey for locations in the virtual or electronic space known as the Internet. In particular, the World Wide Web, because of its ability to handle graphics and mouse clicks, has become a powerful new type of " Yellow Pages" extending to all parts of the country and many parts of the world.

Vast numbers of businesses--even local enterprises--are putting up their own Web sites, creating a new potential for competition (and confusion) in the marketplace. Because of this, every business owner must pay attention to whether a proposed name or mark has already been taken by another business, regardless of that business' location or scope.

Can I do my own trademark search?

Yes. You can do your own search for free on the Internet by visiting the U.S. Patent and Trademark Office's Web site at www.uspto.gov. Or you can visit one of the Patent and Trademark Depository Libraries, available in every state. These libraries offer a combination of hardcover directories of federally registered marks and an online database of both registered marks and marks for which a registration application is pending. Most of these libraries also have step-by-step instructions for searching registered and pending marks.

In addition to searching for registered or pending marks, you may also use product guides and other materials available in these libraries to search for possibly conflicting marks that haven't been registered. This can be important because an existing mark, even if it's unregistered, would preclude you from:

  • registering the same or confusingly similar mark in your own name, and
  • using the mark in any part of the country or commercial transaction where customers might be confused.