Pro edition
Search Method.
About 4.1 hours per mark across six places, in this order. Half of what it finds never appears in a register, which is the whole reason a designer does this at all rather than waiting for a database.
Not legal advice
I am a designer, not an attorney. What I do is a knockout search — federal register, state registers, common-law use and domains — which finds the obvious collisions early and cheaply. It is not a clearance opinion and it is not legal advice. A clearance opinion comes from a trademark attorney, it costs money, and it is on the fee table below because it belongs there.
Six places, in order
| Where | Time | What it can and cannot tell you |
|---|---|---|
| The federal register | 45 min | The obvious one. Search the sound and the meaning, not the spelling — a mark that sounds the same is the same mark for most purposes, and a design that means the same thing frequently is too. |
| State registers | 30 min | Two or three states around the client. Cheap, badly indexed, and the source of about a quarter of everything I find. |
| Common-law use | 90 min | Business directories, review sites, local press, the phone book equivalents. An unregistered business trading in the same state can stop you and will never appear in a register. |
| Image search, three ways | 45 min | The drawing, a described version of the drawing, and the idea in words. Reverse image search is the weakest of the three because a redrawn version of the same idea is not a visual match. |
| Domains and handles | 20 min | Not a trademark question and it decides real things. A name whose domain is parked at $12,000 is a name with a cost attached to it. |
| The typeface EULA | 15 min | About half of display faces exclude logo use. Fifteen minutes, and the alternative is a licence conversation after the vinyl is cut. |
Writing it up without giving an opinion
- Describe, do not concludeWrite what was found and where. Never write "this mark is available" — that is an opinion, it is not yours to give, and it is the sentence a client will quote back.
- Date and scope every searchWhich registers, which states, which day. A search is a photograph of a moment and the register changes weekly.
- Screenshot the collisionsThe record entry, the local business page, the parked domain. A finding without a screenshot becomes a memory within a month.
- Rank by what it would costA live federal registration in the same class is a different order of problem from a similar name in an unrelated trade. Say which is which rather than listing everything flatly.
- Name the residual riskExplicitly: what a designer’s search cannot see. It reads as weakness and it is the most valuable paragraph in the document.
Six ways a search gives false comfort
- Searching only the spellingTrademark similarity is about sound, appearance and meaning. Two marks spelled differently that sound identical are usually the same mark.
- Searching only in one classRelated classes matter and class 35 catches almost everybody. A retailer’s mark can collide with a manufacturer’s.
- Treating an empty register as clearThe register shows registrations. It does not show the shop three towns away that has been open since 2004.
- Searching after the presentationThen a search finding is a withdrawal, which is a much worse conversation and produces pressure to ignore it.
- Searching onceBetween search and filing there are weeks. Re-run the federal search the day before the application goes in; it takes twenty minutes.
- Believing a free tool’s summaryThe "available!" badge on a search site is a marketing device attached to a filing product. Read the results, not the verdict.
When to stop and call an attorney
Five situations. In every one of them the honest thing a designer can do is say the word “attorney” and mean it.
- The mark is going on a building
- Attorney. The cost of being wrong is a sign order, not a logo file.
- The business is raising money
- Attorney. Diligence will ask for a clearance opinion and not having one is a discount.
- A collision is close but not exact
- Attorney. "Close" is precisely the judgement a designer is not qualified to make and an examiner is.
- Anything crossing a border
- Attorney, and a different one per jurisdiction. Nothing in my search applies outside the US.
- A cease-and-desist has arrived
- Attorney, today, before replying to anything and before changing any files.