The most common obstacle to obtaining a trademark registration is the existence of a prior pending application or registration for a confusingly similar trademark for the same or similar goods or services. One of the key tools in addressing this issue is a trademark availability search.
Furthermore, the law requires that the user of a trademark satisfy a due diligence standard prior to initiating use of the trademark. Thus, a business launching a new product may have to show that it had a reasonable basis for selecting and using the brand name. This standard may also be satisfied by having an attorney conduct a trademark availability search.
Trademark searches can involve multiple investigations using Federal or State trademark databases, as well as marketplace databases such as trade name listings and Internet activity searches. These searches incorporate a variety of search criteria intended to capture not only prior or intended uses of the same mark but also marks that might be confusingly similar to the searched for mark. The latter category is critical as these results are frequently more numerous and require a more in-depth analysis by an attorney to determine the likelihood of those marks becoming obstacles to obtaining a federal registration.
While anyone may conduct a trademark search on the public database of the Patent and Trademark Office, laymen are often incapable of formulating the correct queries or interpreting the searches. It may appear that a trademark is not available when in fact it is. Conversely -and more damaging-it may appear that a trademark is available when it is not. And the results of the search can be quite copious and difficult to evaluate. An experienced trademark lawyer can explain to the applicant the issues that may arise, assist in the selection of the trademark, and correctly interpret the trademark search.
It should be noted that due to procedures inherent to the trademark application process and limitations on the effectiveness of search queries, no search can ever be one hundred percent accurate. Almost always, advice as to the availability of a mark should be formulated in terms of a percentage of likelihood that there will be trouble or not.
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Amaury Cruz & Associates
1560 Lenox Ave., Suite 207
Miami Beach, FL 33139
305.604.2051 Voice
305.604.2011 Fax
Representing clients throughout South Florida, including Miami, Miami-Dade County, Coral Gables, Aventura, Broward County, North Miami, South Miami, Miami Beach, Hialeah, Fort Lauderdale, and Pembroke Pines, as well as nationally and abroad.