Fall seems to bring a wave of new things: new products, new names, and new campaigns timed to launch before the holiday season. It also brings a predictable wave of clearance problems that a preliminary search may have caught. Here’s the checklist worth running before a new product or service launches.
For our US-based companies, start with a US federal search, not a Google search
USPTO database should be the starting point, not the finish line. A federal search tells you what’s registered and what’s pending at the USPTO and will catch marks owned by third parties where they have though enough about that mark to pursue trademark registration.
Check state registrations too!
Federal registration isn’t the only kind that exists in the US. Many businesses, especially smaller, regional ones, register at the state level instead of filing federally. A state search adds coverage a federal-only search will miss, particularly for businesses operating in a specific region rather than nationally.
Common-law use is the one people forget.
Trademark rights in the U.S. can exist without any registration at all, simply through use in commerce. A bakery that’s operated under a name for fifteen years without ever filing a state or federal trademark application has real, enforceable rights in its market. A good preliminary search looks beyond the federal and state registers for businesses using a similar name in a similar category, even unregistered ones. Many times the business owner is the one in the best position to know its market.
Domain names and social handles: useful, but not clearance
Checking domain availability and social media handles is a genuinely useful early step. But it is not trademark clearance. An available .com and an open Instagram handle tell you nothing about whether a name is legally clear to use in US commerce. Plenty of names with a wide-open domain still belong to someone else where it counts.
What a search finds, and what it can’t predict
A well-run clearance search tells you what exists today: registered marks, pending applications, and identifiable common-law users in your category. What it can’t do is predict the future: a new application filed the week after your search, a company that expands into your category next year, or an examining attorney’s specific read on a borderline case. A search reduces risk considerably but it doesn’t eliminate it entirely. So treating a search as a guarantee is a mistake.
So what should you do?
Run the federal search first to rule out the obvious conflicts quickly. Layer in the state and common-law search once the name survives that first pass. Check domains and social handles last, since they change constantly and are the easiest to reconfirm right before filing. Doing it in this order saves the most time for the least investment, and keeps you from falling in love with a name before you know whether it’s actually available.
Launching something this fall? Start with a clearance search. Markery Law can run it.