WARNING:AFTER SEARCHING THE USPTO DATABASE, EVEN IF YOU THINK THE RESULTS ARE "O.K.," DO NOT ASSUME THAT YOUR MARK CAN BE REGISTERED AT THE USPTO. AFTER YOU FILE AN APPLICATION, THE USPTO MUST DO ITS OWN SEARCH AND OTHER REVIEW, AND MIGHT REFUSE TO REGISTER YOUR MARK.
Although not required, we recommend that you conduct a search in TESS (Trademark Electronic Search System) for any mark for which you may want to seek federal trademark registration in the USPTO. The purpose of the search is to help determine whether any mark has already been registered or applied for that is similar to your mark AND used on related products or for related services. The USPTO cannot provide guidance as to how you should search, beyond the HELP provided within the TESS site. However, at a minimum, please understand that a complete search is one that will uncover ALL similar marks, NOT just those that are identical.
Searching for trademark availability is NOT the same as searching to register a ".com" address. A ".com" address search may focus on exact or "dead on" hits, with no consideration given to similar names or use with related products and services. Basically, a ".com" address is either available or it is not. Also, if available, you can register a ".com" address on the same day as your search. The trademark process, on the other hand, is more complex. As part of the overall examination process, the USPTO will search its database to determine whether registration must be refused because a similar mark is already registered for related products or services. We do not offer advisory opinions on the availability of a mark prior to filing of an actual application. For the guidelines used to examine applications, see the Trademark Manual of Examining Procedures (TMEP).
Once you submit an initial application, either electronically or through the mail, the USPTO will not cancel the filing or refund your fee, unless the application fails to satisfy minimum filing requirements. Filing an application does not guarantee registration. The filing fee is a processing fee, which we do not refund even if we cannot issue a registration after our review of the application.
The USPTO may refuse to register your mark on numerous grounds. The most common are:
Likelihood of Confusion
The USPTO conducts a search for conflicting marks as part of the official examination of an application only after a trademark application is filed. In evaluating an application, the examining attorney conducts a search of USPTO records to determine whether there is a conflict between the mark in the application and a mark that is either registered or pending in the USPTO. The principal factors considered in reaching this decision are the similarity of the marks and the commercial relationship between the goods and services identified by the marks. To find a conflict, the marks do not have to be identical or the goods and services the same; instead, it is sufficient if the marks are similar and the goods and or services related. Similarity in sound, appearance, or meaning may be sufficient to support a finding of likelihood of confusion.
When a conflict exists between the applicant’s mark and a registered mark, the examining attorney will refuse registration of the applicant’s mark on the ground of likelihood of confusion. If a conflict exists between the applicant’s mark and a mark in an earlier-filed pending application, the examining attorney will notify the applicant of the potential conflict. The applicant’s mark will be refused on the ground of likelihood of confusion only if the earlier-filed application becomes registered.
Merely Descriptive and Deceptively Misdescriptive
The examining attorney will refuse registration of a mark as merely descriptive if it immediately describes an ingredient, quality, characteristic, function, feature, purpose or use of the specified goods or services. A mark will be refused as deceptively misdescriptive if (1) the mark misdescribes an ingredient, quality, characteristic, function, feature, purpose or use of the specified goods or services; and (2) the misrepresentation conveyed by the mark is plausible.
Primarily Geographically Descriptive and Primarily Geographically Deceptively Misdescriptive
The examining attorney will refuse registration of a mark as primarily geographically descriptive if: (1) the primary significance of the mark is geographic; (2) purchasers would be likely to think that the goods or services originate in the geographic place identified in the mark, i.e., purchasers would make a goods/place or services/place association; and (3) the mark identifies the geographic origin of the goods or services.
A mark will be refused as primarily geographically deceptively misdescriptive if: (1) the primary significance of the mark is geographic; (2) purchasers would be likely to think that the goods or services originate in the geographic place identified in the mark, i.e., purchasers would make a goods/place or services/place association; and (3) the goods or services do not originate in the place identified in the mark.
Primarily Merely a Surname
The examining attorney will refuse registration of a mark if the primary significance to the purchasing public is a surname.
In general, the examining attorney will refuse registration if the applied-for mark is merely a decorative feature or part of the "dress" of the goods. Such matter is merely ornamentation and does not serve the trademark function of identifying and distinguishing the applicant's goods from those of others.
NOTE: For a complete list of the substantive grounds of refusal and a detailed explanation of each, see Chapter 1200, Trademark Manual of Examining Procedure (TMEP). The USPTO cannot provide preliminary legal advice as to whether we will register a particular mark; filing an application is the only way to obtain a decision on whether the USPTO will refuse registration.