A Trademark search or a Trademark availability check process is a crucial process employed to identify existing trademarks that may bear resemblance to or conflict with a proposed trademark. It stands as a pivotal step in the trademark or label registration process in India, aiming to ascertain the uniqueness and distinctiveness of the brand under consideration, while also ensuring its non-usage by other entities. Conducting a comprehensive trademark search prior to the registration is imperative to preclude potential conflicts with existing trademarks, legal entanglements, damage to reputation, and the risk of registration refusal.
In India, the Comptroller General of Patent Designs and Trademarks oversees trademark registrations and registered trademarks. The Comptroller General’s website offers an online trademark search database, accessible to both professionals and non-professionals for conducting trademark searches. This comprehensive trademark database comprises all trademark applications submitted to the Trademark registrar in India, encompassing registered, applied, objected, and expired trademarks. A trademark search within the database furnishes valuable information pertinent to the search query, serving as an invaluable resource in the trademark registration process.
FUNCTIONS OF A TRADEMARK
A trademark performs four functions:
- Identifies the good(s)/or service(s) and its origin.
- Guarantees the quality of good(s)/service(s).
- Advertises the goods/service(s).
- Creates an image for the goods/service(s) in the minds of the public.
PURPOSE & BENEFITS OF A TRADEMARK SEARCH
- Avoids Infringement: By identifying existing trademarks that are similar to yours, a thorough search helps you avoid choosing a trademark that could lead to legal disputes over infringement, potentially saving you from costly lawsuits and damages.
- Saves Time and Money: A proper search can prevent you from filing an application for a trademark that is likely to be rejected due to conflicts with existing marks. This saves the cost of application fees and the time spent preparing and submitting the application.
- Increases Success Rate: By identifying potential conflicts early, you can modify your trademark or strategy to increase the likelihood of successful registration, avoiding rejections from the trademark office.
- Protects Brand Identity: Ensuring your trademark is unique and not confusingly similar to others helps establish a strong, distinct brand identity, which is crucial for market recognition and customer loyalty.
- Prevents Rebranding: Avoiding conflicts with existing trademarks reduces the risk of being forced to change your brand name or logo after you’ve already invested in building your brand, which can be disruptive and costly.
- Protects Investment: Conducting a thorough search protects the investments made in marketing, advertising, and brand development by ensuring that your trademark can be securely registered and defended.
- Provides guidance towards choosing a correct Brand/ Trademark: Trademark clearance search or a brand name search is generally designed in such way that the person searching for the said brand eventually develops a good sense as to what trademarks are available and what trademarks are not available. This helps in trademark conflict avoidance and trademark protection
PROCESS OF TRADEMARK SEARCH
- Shortlist Brand Names: Create a shortlist of potential trademarks, including variations in text, design, or a combination of both.
- Identify Relevant Classes: Determine the classes of goods and services under which your trademark will be registered, as trademarks are categorized into different classes based on the Nice Classification system.
- Search Trademark Databases: Search the database of Trade Marks Register through https://tmrsearch.ipindia.gov.in/tmrpublicsearch/
- Search Variations: Look for variations in spelling, design, phonetics, and similar-sounding trademarks that could be considered confusingly similar to your proposed mark.
- Check Unapplied Trademarks: Search for unregistered and unapplied trademarks used in commerce through common law rights, including:
- Business Directories
- Domain name databases
- Internet search engines
- Social media platforms
- Analyse Search Results: Evaluate the results to identify potential conflicts with existing trademarks, focusing on the likelihood of confusion, similarity, and the classes of goods or services.
HOW TO DO A TRADEMARK SEARCH?
To do a trademark search, visit the https://tmrsearch.ipindia.gov.in/tmrpublicsearch/ using a web browser:
- Select the Search Type at the top of the Page.
- Wordmark: For searching the exact wording of your trademark.
- Vienna Code: For searching trademarks with similar design elements. (Vienna codes classify the figurative elements of marks).
- Phonetic: For searching trademarks that sound similar.
- Enter the ‘Wordmark’ you would like to search the trademark database with. The trademark database can be compared against the search query on three conditions – “start with”, “contains” and “match with”.
- Start With: If you enter “Example”, it will show results like “ExampleCorp”, “ExampleTech”.
- Contains: If you enter “Example”, it will show results like “BestExample”, “ExampleSolutions”.
- Match With: If you enter “Example”, it will show results that exactly match “Example”
- Select the Class: Choose the appropriate class for your goods/services. Trademarks are divided into 45 classes under NICE Classification.
- Perform the Search: Click the search button to see the results.
TRADEMARK SEARCH RESULTS
In the following illustrated example, the results for trademark search of the word “Tanishq” under Class 14 (Class 14 pertains to jewelry) is displayed:
The Trademark search result displays all the Trademark starts with the word “Tanishq” registered under Class 14 (NICE Classification). Selecting the option “show details” would display information related to the trademark application number, application date, owner information, journal number, trademark validity date, trademark used since the date and a description.
If the search results indicate that the proposed trademark is likely to conflict with an existing trademark, it is advisable to modify or abandon the proposed trademark before applying for registration. On the other hand, if the search results indicate that the proposed trademark is unique and not infringing on any existing trademark rights, it is safe to proceed with the trademark registration process which starts with the filing of a trademark application before the concerned Trademark Registry. The application process involves submitting the relevant information, documents and at last, payment of the requisite fees prescribed in the Trade Marks Act of 1999.
ASK AN EXPERT
It is advisable to consult with specialists before adopting a trademark. Here’s where “TMWALA” is prepared to be your ally, conducting thorough trademark and clearance searches to ensure the optimum security of your brand.
In this endeavor, where proactive thinking and foresight set the groundwork for your brand’s success, let “TMWALA” be your partner.
FAQs ABOUT TRADEMARK SEARCH
What is a trademark search?
A trademark search is a process of searching existing trademarks to determine whether a proposed trademark is available for use and registration. It helps to avoid potential conflicts with existing trademarks.
Why is a trademark search important?
Conducting a trademark search helps to:
- Avoid legal disputes by ensuring your trademark doesn’t infringe on existing trademarks.
- Determine the availability of your trademark for use and registration.
- Save time and resources by identifying potential issues early in the trademark application process.
What are the types of trademark searches?
- Preliminary (knockout) search: A quick search to identify obvious conflicts.
- Comprehensive search: An in-depth search covering federal, state, and common law trademarks.
- International search: A search of trademarks registered in other countries if you plan to expand your business internationally.
How do I conduct a trademark search?
- Online databases: Use databases such as the United States Patent and Trademark Office (USPTO) TESS (Trademark Electronic Search System) for federal trademarks.
- Professional services: Hire trademark attorneys or search firms for comprehensive searches.
- State databases: Check individual state trademark databases.
- Common law search: Look for unregistered trademarks through business directories, industry publications, and the internet.
What should I look for in a trademark search?
- Exact matches: Identical trademarks in the same class of goods/services.
- Similar marks: Trademarks that are similar in sound, appearance, or meaning.
- Goods/services: Ensure the trademarks are used for related goods or services.
- Status: Check if the trademark is active, abandoned, or expired.
Can I conduct a trademark search myself?
Yes, you can conduct a preliminary search using online databases. However, for a comprehensive search, it’s advisable to hire a trademark attorney or a professional search firm.
What if a similar trademark is found during the search?
If a similar trademark is found, it’s crucial to assess the risk of potential conflict. A trademark attorney can help analyze the likelihood of confusion and suggest alternative trademarks if necessary.
How much does a trademark search cost?
The cost varies depending on the type of search. Preliminary searches can be free or low-cost, while comprehensive searches conducted by professionals can range from a few hundred to several thousand dollars.
What happens after the trademark search?
If the search indicates that your trademark is available, you can proceed with the trademark application. If potential conflicts are found, you may need to modify your trademark or choose a different one.
Is a trademark search mandatory?
While not legally required, conducting a trademark search is highly recommended to avoid legal issues and ensure your trademark can be successfully registered and protected.
