Obtaining a registered trademark can protect your brand. It means other people and businesses can not legally use certain marks, images, and words in a way that is similar to the way you and your business do. That keeps others from diluting or damaging your brand in the marketplace or confusing your customers.

To get this protection, you must file for a trademark. You can’t usually get approved for a trademark if someone has already claimed it, especially if they’ve done so specifically in the niche or for the use you had planned. A trademark lawyer can help you plan for, research, and file your trademark.

What Is a Trademark?

A trademark isn’t just an idea. It’s a specific mark that is recognizable as associated with your business, products, or services. Trademarks can be symbols, words, designs, or phrases—and often are a combination of some or all of these things.

If you trademark a phrase, you don’t own or control that phrase. You can’t stop anyone ever from using it, for example. A trademark just means that you have protection against someone using the design or phrase in the same way you are.

For example, if you trademark a phrase as the tagline of your lawn care business, another business that offers lawn care or similar services would likely not be able to use it. That’s certainly true if the business operated in the same region you did. However, a business that’s completely different from yours, such as a retail store or coffee shop, may be able to use a very similar phrase in conjunction with its product or services.

In the same way, you can’t use a phrase or design that someone else has already trademarked if your use would be too similar to theirs. In this case, they are protected by the pre-existing trademark.

What Is a Trademark Search?

A trademark search is how you find out if someone else has already trademarked your idea. The United States Patent and Trademark Office offers an online process for applying for a trademark. It also offers the Trademark Electronic Search System (TESS), which you can use to conduct a basic trademark search.

Using TESS, you can conduct the following types of trademark searches:

  • Basic word mark search. This is a text-based search, so you can use it to search for words within a trademark. You can also search by serial or registration number or owner name if you already know about the owner of an existing trademark.
  • Structured word and/or design search. This can be a more powerful search that lets you create a structured query to find trademarks based on words, designs, or both elements. The TESS system will help you build your search.
  • Unstructured word and/or design search. This can be one of the most efficient ways to find out whether someone else has trademarked your idea, but you have to structure your own search. As such, this option usually only works for users who are experienced using TESS.

If you want to search to see if someone has trademarked a very specific word or phrase, this can be fairly easy. However, if you’re looking for design elements, it can get more complex. You may also need to consider different spellings and design variations that might be close enough to what you want to do to cause a trademark problem.

Can You File for a Trademark That Already Exists?

If you discover that someone has already trademarked a design, word, or phrase you want to use for your business or product, that doesn’t mean you definitely can’t use it. As previously mentioned, if your use is sufficiently different, the trademark protection may not be in play.

Trademarks are divided by classifications and categories. If you want to trademark something within a different category, you may be able to proceed. If you can demonstrate that a business trademarked something well after you had been using it in the market—and the other business hadn’t used the mark yet—you may be able to continue with your trademark. However, in some of these cases, you may have to contest the trademark or otherwise seek legal remedies for your situation.

Get Help From a Trademark Attorney

Trademark law is complex and there are no black and white rules about when trademarks are considered too close. In cases where two businesses or people want to use a similar trademark and one of those businesses or people contests the other’s use or one of the trademarks is denied, the Trademark Trial and Appeal Board makes a decision after reviewing the details of the case.

Having a lawyer for help with trademarking can help you:

  • Understand what trademark may be right for your business and when trademark protection might be important
  • Conduct in-depth research to ensure that no one else has trademarked something similar—a trademark lawyer can go above and beyond the simple search you may be able to accomplish in TESS
  • Fight for your trademark and help you go through appeals processes if you don’t get approved immediately

For help with your trademark issues, contact InPrime today.