I like to think of a free trademark check as the very first step in the trademark search and clearance process. It provides some basic information that helps determine whether it makes sense to take the next step and conduct a comprehensive federal trademark search to potentially find conflicts, issues, and other problems that could negatively affect the cost, time frame, and ability to successfully register your trademark. Without question, everyone should at least do a quick trademark check before adopting, using, and applying to register a name, phrase, or slogan. I also firmly believe that everyone should do one prior to hiring a trademark attorney. This is because you don’t want to pay a few hundred dollars in legal fees just for your attorney to find an obvious conflict in two minutes that you would have easily found had you first performed a trademark check yourself.
Where Can I Find the Free Trademark Check?
The official free trademark check is available through the website of the United States Patent and Trademark Office (USPTO). It’s called the “Trademark Electronic Search System,” or TESS for short. While you may find other free online trademark search options offered by companies such as Trademarkia and Trademark Engine, (among many others), I strongly recommend against using these services because the accuracy of their databases cannot be guaranteed and it’s not clear how frequently their databases are even updated. There’s simply no reason to conduct a trademark check using anything other than the TESS system.
What Exactly is TESS?
The free trademark check I encourage you to do through TESS is simply a cursory search of the USPTO records. It will reveal only (1) live trademark applications, (2) live trademark registrations, (3) dead trademark applications, and (4) dead trademark registrations that match your search query. You can very easily restrict your search to only live trademarks (since those tend to be the most relevant), but there may be reasons why you would want to review dead trademarks as well.
The Severe Limitations of a Free Trademark Check
As previously mentioned, TESS is offered to the public free-of-charge. But as the old saying goes, you only get what you pay for. And TESS is no exception to this rule. The trademark check you perform through TESS (and any other free service for that matter) will not tell you whether your trademark is eligible for registration. Let me repeat that. It will not tell you whether your trademark application will be approved after it’s reviewed by a USPTO examining attorney. Let me explain:
- There are many types of trademarks that are ineligible for registration under any circumstances (e.g. trademarks that are deceptive, geographically deceptively misdescriptive, or functional). A free trademark check won’t tell you if your mark falls into one of the numerous categories of marks that are completely barred from being registered.
- There are some types of trademarks that are only eligible for registration under certain circumstances (e.g. trademarks that are merely descriptive, primarily geographically descriptive, deceptively misdescriptive, or merely a surname). Again, a free trademark check cannot tell you if your mark falls into one of these categories.
- The TESS search functionality is very limited. In fact, it’s so limited that the trademark examining attorneys at the USPTO don’t even use it. TESS is really only designed for performing a quick trademark check for identical or nearly identical marks. It absolutely won’t tell you whether an examining attorney will issue a likelihood of confusion refusal after performing his/her own in-depth search of the USPTO records using much more powerful software than TESS.
- A free trademark check won’t inform you as to the likelihood of a third-party filing a trademark opposition against your trademark application after it’s published for opposition.
Again, I wholeheartedly recommend using TESS to conduct an initial rudimentary search. But it’s extremely important that I don’t leave you with the impression that a free trademark check is sufficient. I’ve been practicing trademark law since 2005 and I can tell you dozens of stories where people did only a TESS search, filed a trademark application based on TESS results that seemed OK, and then were shocked to receive a trademark office action indicating that the USPTO was refusing registration of their mark. I assure you that this is not a rare occurrence.
How Do I Perform the TESS Trademark Check?
TESS actually offers three different trademark check options. The one that 99% of people use is called the “Basic Word Mark Search” because it’s by far the least complicated to navigate. Although the other two options allow you to drill deeper into the USPTO records to find more relevant hits by using filters and Boolean logic, you’ll need to spend quite a bit of time figuring out how to effectively use them. And even if you did become proficient, they still pale in comparison to the search software used by the USPTO examining attorneys, as well as the software that trademark attorneys use to search trademarks for their clients.
For the TESS Basic Word Mark Search, all you have to do is type in your trademark and see what pops up. Maybe you’ll only get a handful of results. Maybe you’ll get hundreds or thousands of results. Maybe you’ll get zero results. In any case, you should also type in different variations of your trademark (e.g. alternative spellings, pluralization, and verb conjugations). You should also think about words that have related meanings and connotations and check those as well.
If your free trademark check doesn’t uncover any obvious conflicts, then that is when you should take the next step and seek the assistance of a skilled and knowledgeable trademark attorney to conduct a comprehensive federal trademark search on your behalf. This search will either confirm or refute the results of the free trademark check and will provide you with all the information you need to make the best decision going forward.
Ready to Take the Next Step?
I’m experienced US trademark attorney Morris Turek. If you didn’t find any obvious conflicts after you performed your free trademark check, and now want to proceed with a comprehensive federal trademark search to make sure your trademark is available for registration, please contact me right away so that we can get started. You can call me at (314) 749-4059, send an email to firstname.lastname@example.org, or submit a message through my contact form (below). I look forward to speaking with you soon.