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Further Questions?


Does a Trademark Search tell me definitively if a mark is available?

While trademark searches can provide you with extensive information regarding other marks may be in use in commerce, and the status of those marks (i.e., registered, pending or abandoned), searches do not provide answers as to whether your trademark will be registrable with the USPTO. An Examiner at the USPTO must examine your trademark to determine availability for use and registration. The Examiner will evaluate whether your mark conflicts with a previously existing mark and/or whether it is sufficient to meet the minimum requirements to become a federally registered trademark.
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What type of information will I receive when I perform a U.S. full trademark search?

You will receive (1) information regarding marks that are used in commerce, but not registered on a state or federal level (common law marks); (2) information regarding marks that are registered in any one or more U.S. states; (3) information regarding marks that appear within the USPTO database (may include pending, registered, abandoned marks).
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What are pending marks?

These are marks that have not yet been registered with the USPTO, but are either in the queue to be registered, or are on hold pending Examiner inquiry or opposition from a third party.
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Is it advisable to conduct a search before I apply to register a trademark?

A search is not required to be performed prior to applying for a trademark registration. However, a search can be extremely beneficial in determining the availability of your trademark. A comprehensive trademark search can provide you with information regarding registered marks, marks that are currently pending with the USPTO, marks that are registered or pending on state databases, as well as common law marks (which include, for example, company/business names, DBAs, industry information regarding businesses, etc.).
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What are "common law" rights?

Common law trademarks (unregistered trademarks) generally provide protection only in areas in which the trademarks have actually been used; thus, providing only a limited scope of protection. A trademark may have rights associated with it even though the mark has not been registered with a state or the federal government. The term "common law" indicates that the trademark rights are not governed by statute. Common law trademark rights have been developed under a judicially created scheme of rights governed by state law.
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What are abandoned marks?

An application that has been declared abandoned is "dead" and no longer pending with the USPTO. Abandonment occurs under several circumstances. The most common reason for abandonment is when the Examining Attorney at the USPTO rejects an application and requires the application to respond. If the applicant's response to the Office action is not received in the USPTO Office within six months of the mailing date of the Office action, the application will be declared abandoned. Another instance is when the USPTO does not receive a Statement of Use (or request for an extension of time to file a statement of use) from an applicant within 6 months from the issuance of a Notice of Allowance). Applications abandoned for failure to respond to an Office Action or a Notice of Allowance can be revived or reinstated in certain circumstances.
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What are dead marks?

A dead or abandoned status for a trademark application means that specific application is no longer under prosecution within the USPTO, and would not be used as a bar against your filing. It does not necessarily mean that there are not other marks that might be in use in commerce (i.e., certain marks can be dead or abandoned, but are still in use in commerce). Further, the trademark examining attorney could cite a dead mark against a trademark application in certain circumstances, such as the dead mark was mistakenly abandoned by the USPTO.
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What are live marks?

A "live" mark is one wherein the application is currently under prosecution within the USPTO. A "live" mark could be used as a bar against a subsequently filed trademark application.
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Why is a trademark search necessary?

A search is not required to be performed prior to applying for a trademark registration. However, a search can be extremely beneficial in determining the availability of your trademark. A comprehensive trademark search can provide you with information regarding registered marks, marks that are currently pending with the USPTO, marks that are registered or pending on state databases, as well as common law marks (which include, for example, company/business names, DBAs, industry information regarding businesses, etc.).
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What is federal protection of a trademark?

Federal registration, a system created by federal statute, is not required to establish common law rights in a mark, nor is it required to begin use of a mark. However, federal registration, if available, is almost always recommended and gives a trademark owner substantial additional rights not available under common law.
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Is a business name the same as a trademark?

A business name, or the name that a business uses to identify itself, is often referred to as a "trade name." A business name, as distinguished from a trademark, is used in connection with a legal or tax entity (a corporation or LLC, for example). A trademark, on the other hand is used in connection with a product or service, which may, or may not, be the same as an entity's business name. A business name is not considered a trademark or entitled to protection under trademark laws unless it adorns a product or service.
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