If you’re picking a name or logo for your business or product or using one you’re not sure is clear to use, you might be standing at a crossroads, unsure of what to do: keep going full steam ahead with that clever name you love, or hit pause until you’re sure you’re not infringing on someone else’s trademark?
This decision isn’t just about branding. It could make or break your business.
With my apologies to Iggy Pop and The Stooges, let me tell you how to save your business’ soul with a proper, thorough trademark clearance search done by an experienced trademark attorney, especially before printing packaging, launching your website, or investing in social media ads.
Look Out Honey, 'Cause I’m Using Technology to Do a Proper Trademark Clearance Search
A trademark clearance search isn’t just “seeing if the domain is available” or typing a name into Google. A thorough clearance search involves using artificial intelligence AND manual searching, and it involves at the very least:
- Searching the federal USPTO database,
- Checking for common law use (businesses using a name but without a state or federal trademark registration), and
- Analyzing the results for “likelihood of confusion” based on how the courts and the USPTO actually apply the law.
Why do manual searching when we have AI?
As many people are finding out the hard way, AI isn’t perfect. It’s great for speeding up some tasks, but it often produces a good deal of useless results along with the useful ones. More importantly, it doesn’t always catch everything. Sometimes when I’m doing my manual search, I find things the AI search missed. To be fair, sometimes it finds things I didn’t find. That’s why it’s great to do both.
Doing a good manual search isn’t simple.
You can’t just enter the name into the USPTO database and press “search” and expect to get thorough results. You have to know how to use many of the advanced search fields and wildcards to run multiple searches to find the marks that are similar but not identical to yours. You need to know how to do that in Google search state records, too.
Don’t Search and Destroy: Why a DIY Search Isn’t Enough
Many small business owners try to do a search themselves. And look, I understand it. Bootstrapping is often part of the entrepreneurial journey. But in this case, what you don’t know can hurt you.
DIY searches often miss the following:
- Spelling variations, phonetic equivalents, or foreign language equivalents;
- Legal nuances of identical or similar marks registered for the same or similar types of goods or services, and how similar they can be without being a problem;
- Unregistered but enforceable common law marks; and
- Other important potential problems.
A quick search in the USPTO database won’t catch the landscaping business in your state that’s been using a nearly identical name for services similar to yours for 10 years but has no registration, or the New York-based coaching company with a federal registration that sounds just like yours but has a different spelling.
No Fun: The Cheap Online Trademark Service Trap
Who doesn’t like to save money? I get it. I like a good bargain, too. I see the appeal of online platforms like LegalZoom, Trademark Engine, and similar services that advertise cheap and fast trademark searches and filing. But here’s what they don’t tell you, or what’s buried in the fine print no one reads, based on what I’ve personally seen happen to clients who started with them:
- Their “searches” are usually automated only – no manual searching is done.
- You typically don’t get a legal analysis of the results, just a printout of what the AI search found. At best, you get a “ranked” results list that doesn’t come with advice. If a potential conflict shows up, they often don’t tell you whether it’s a legitimate concern or how much of a problem it could be. You’re often still responsible for interpreting the results—and for the consequences.
- They won’t tell you before doing the search if the search isn’t worth doing because your mark is ineligible for registration for one of the many reasons an application may be denied.
Note that I know these things because my clients didn’t feel confident in the service they got from an online service, so they then hired me to do the job properly.
Most of these online services are not law firms, meaning they don’t and can’t represent you before the USPTO after they file your application. The ones that do offer limited scope legal services have the equivalent of fast-food prices in the legal world. Ask yourself why that is. In other words, relying on the cheap online services is like using WebMD to see if your symptoms are signs of heart failure. You might get the right answer . . . or you might miss something big and potentially fatal.
Gimme Danger: What Happens If You Get It Wrong
Here’s what could happen if you launch or keep operating without a proper clearance search:
- Valid cease-and-desist letters from another business or trademark owner
- Forced rebranding, including a new name, logo, packaging, website, and more (and to meet someone else’s deadline)
- Loss of customer trust, or customer confusion, if your brand suddenly changes
- Legal fees to fight or settle an infringement claim
- Unobtainable trademark registration if someone else beats you to it
The worst part? You may not hear about the problem until your business is gaining traction, which is right when it’s hardest to rebrand. I have some older posts that go into more detail about why forced rebranding is a nightmare and what it can cost a business in money and consumer confidence.
Honey Gotta Strike a Plan: What You Should Do Instead
Before locking in a business name, brand name, or logo (or if you’re already using one and aren’t 100% confident it’s clear), here’s what you should do to avoid nasty problems:
- Talk to an experienced trademark attorney about the strength of your name or logo. If there are problems that are obvious to them through their years of experience, they can advise you on what to do.
- Once your trademark attorney has made sure there aren’t any obvious problems, have them conduct a comprehensive clearance search and analyze the results.
- Discuss the results and analysis with the attorney and use that legal insight to make an informed business decision.
A good trademark attorney won’t just tell you what’s taken; they’ll tell you what’s risky, what’s defensible, and how to move forward strategically.
Think of a comprehensive clearance search as insurance for your business and brand. You’re investing time, energy, and money into building something meaningful. Don’t gamble on a name or logo that could get you into legal hot water.
Instead, take the time now to make sure your name and logo are not only memorable, but legally yours.
My Idea of Fun: Ready for Your Brand's Next Step?
If you’re launching, growing, or just unsure whether your business/brand name or your logo are truly protected, let’s talk. I help entrepreneurs across the U.S. make smart, legally sound decisions about names and logos.
If you’d like to consult with me, you can use my contact form or book a consultation online at kingpatentlaw.com or by calling my office at 312-596-2222 or 217-714-8558.
Please check out the other posts and pages on my website for more information on trademarks and other intellectual property and business law issues.
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