Choosing a business name can feel exciting at first. You brainstorm ideas, and maybe even start imagining the logo and marketing. Then comes the part many businesses overlook: making sure no one else is already using the name.
This is more than checking federal trademark registrations. A business can still have trademark rights without ever registering with the United States Patent and Trademark Office. You need a more in-depth search, especially for common law trademarks.
So, how do you conduct a common law trademark search? Here are a few tips to avoid legal headaches and the expense of rebranding.
What Is a Common Law Trademark?
Most trademarks are registered through the USPTO. However, a common law trademark is different. This is a trademark protected by use in commerce rather than by federal registration.
If a business has been actively using a name, slogan, or logo to sell products or services, it may have legal rights to that branding. And that can happen even if it never filed a federal trademark application.
Unfortunately, this is where businesses can run into trouble. You might think that because a name does not appear in the federal trademark database, it is automatically safe to use. But that is not always the case.
You Need a Common Law Trademark Search
A common law trademark search protects you before you get too far down the road. You have everything tied to a business name, such as:
- Your website
- Social media accounts
- Marketing materials
- Packaging
- Business cards
- Customer recognition
What would happen if you received a cease-and-desist letter months later? This is not an uncommon situation. Businesses invest heavily in branding before realizing another company was already using a similar name.
With a trademark search, it can help reduce the risk of:
- Trademark infringement claims
- Expensive rebranding projects
- Lost marketing investments
- Customer confusion
- Delays in the trademark application process
Remember that it is much easier to adjust a name early than after your branding is already established. Here is a look at how you start that search.
Search the USPTO Database
The USPTO’s Trademark Electronic Search System allows you to search existing federal trademarks and pending applications. When searching, avoid looking only for exact matches. Trademark issues can happen from names that are similar enough to confuse consumers.
For example:
- Similar spellings
- Similar-sounding names
- Abbreviations
- Plural versions
- Related products or services
These can all potentially create legal concerns. A name does not have to be identical to create a trademark issue.
Look Beyond Federal Registrations
This is where “common law” can start to make the process confusing. Since many businesses operate without federal trademark registration, you also need to search the places where real businesses exist and advertise. These include:
Search Business Name Records
You might want to check state Secretary of State databases for businesses operating under similar names. This could help you uncover LLCs, corporations, or assumed business names that never filed federal trademark applications but are still actively using the brand.
Search Domain Names and Websites
If a business has been operating online under a name for years, that may indicate established common law trademark rights.
You may want to search for:
- Exact domain matches
- Similar domain variations
- Older websites still in operation
- Archived branding or active marketing
Even a smaller regional business can create potential trademark conflicts.
Check Social Media Platforms
Many businesses establish a strong brand presence on social media long before seeking trademark registration. Look at:
- TikTok
- X
With consistent use of a business name across platforms, that could signal active commercial use and possible trademark rights.
Why Businesses Work with Trademark Attorneys
Trademark searches can become complicated once you get past those basic internet searches. Finding similar names is only part of the process. The more difficult question is whether those similarities actually create legal risk.
An experienced trademark clearance attorney can help see whether you have:
- Potential infringement concerns
- Similar commercial impressions
- Industry overlap
- Geographic conflicts
- Trademark strength and protectability
Sometimes, a business name may technically be available but still carries a risk of creating future problems.
Common Law Trademark Searches Can Save You from Problems
If you are looking for the best way to conduct a common law trademark search, you really need to work with an attorney.
Before investing in branding, websites, advertising, and marketing, they can take the time to check whether another business already has rights to the name.
At Iconic Inc, we can help you with these searches. With that, you can move your business into the future with confidence. Reach out today to schedule a consultation.