Establishing and protecting a brand is one of the most important steps a business can take. A strong trademark can be a valuable business asset, helping to distinguish your products or services in a crowded marketplace. But before investing in a name, logo, or slogan, you must ensure that your mark is available and legally safe to use.

In the United States, trademark rights are based not only on registration but also on actual use in commerce. This means that a business using a similar mark — even if unregistered — may have legal grounds to stop you from registering or using your own brand.

That’s why a complete trademark search is not just helpful; it is critical.

Trademark Rights Begin with Use, Not Just Registration

Unlike many other countries where registration is a requirement to obtain trademark rights, the U.S. trademark system follows the “first to use” rule. This means:

– The first party to use a mark in commerce acquires priority rights in that geographic area.

– Even without federal or state registration, this party may have enforceable rights under common law.

– A later applicant who tries to register a similar mark — even federally — may be denied registration or face a legal dispute.

In practice, this creates a landscape where unregistered, state-registered, and federally registered marks may all coexist — and potentially conflict.

The Three Levels of Trademark Search

To properly evaluate the availability of a trademark, you must search all three levels of potential conflict. Focusing only on the federal USPTO database (as many do) is not sufficient to fully assess the legal risks.

1. Federal Level Search – USPTO (TESS Database)

The United States Patent and Trademark Office (USPTO) maintains the most comprehensive national trademark database, known as the Trademark Electronic Search System (TESS).

Searching TESS allows you to identify:

– Registered trademarks

– Pending applications

– Abandoned marks that could still have residual common law rights

– Marks that are confusingly similar in sound, appearance, or meaning

Federal registration offers the broadest scope of protection, including:

– Exclusive nationwide rights

– Legal presumptions of ownership and validity

– The ability to use the ® symbol

– Access to federal courts

– The right to block infringing imports via U.S. Customs

However, not all trademarks appear in this database — which brings us to the next two levels.

2. State-Level Trademark Search

Each U.S. state has its own trademark registration system, typically managed by the Secretary of State or a similar agency. These marks:

– Are valid only within the state where they are registered

– May be more affordable and faster to register than federal marks

– Can still give rise to legal disputes if a similar mark is later registered federally

A business operating only within one state (such as a restaurant, boutique, or home service provider) may not bother with federal registration — but their state trademark could still block your ability to use a similar mark in that area.

Therefore, you must check the state-level databases for each relevant jurisdiction — especially where you plan to operate, market, or sell your product or service.

3. Common Law Search – Unregistered Trademarks

This is the most overlooked — and most legally dangerous — level.

Even if a mark is not registered at the state or federal level, the first person to use it in commerce can still acquire common law trademark rights. These rights are limited geographically but are legally enforceable.

Common law marks often belong to:

– Small businesses

– Local entrepreneurs

– Online sellers

– Freelancers and creators who brand their services but don’t file for registration

Because common law marks aren’t listed in official trademark databases, they must be identified through manual investigation, including:

– Google and Bing searches

– Social media platforms (Instagram, Facebook, TikTok, LinkedIn)

– Business review platforms (Yelp, TripAdvisor, Better Business Bureau)

– Online business directories (Yellow Pages, Manta, etc.)

– Domain names and websites

– Press releases and local news articles

Failing to detect a common law user can result in a cease-and-desist letter, litigation, or being forced to rebrand after launch.

Hypothetical Example – Why a Full Search Matters

Imagine a startup skincare company on the East Coast wants to launch under the brand name “SunGlow Naturals”. They check the USPTO database, find no matches, and proceed to file a federal trademark application.

Unknown to them, a small business in Oregon has been selling under the same name since 2018, has built a loyal customer base, and holds a state trademark registration.

What happens next?

– The Oregon company files an opposition to the federal application during the USPTO publication period.

– Even if the federal mark is registered, the Oregon business can sue in court to defend its prior rights.

– The East Coast company may be forced to stop using the name in certain regions, destroy packaging, lose marketing investments, and rebrand entirely.

All of this could have been avoided with a proper three-tiered trademark search.

Conclusion: Invest in the Search Before You Invest in the Brand

Your brand is one of your most valuable assets. It appears on your website, product packaging, marketing materials, and legal documents. The cost of rebranding after a legal challenge is often far greater than the cost of conducting a thorough trademark search upfront.

Here’s what a complete clearance search gives you:

– Peace of mind before filing

– Lower risk of litigation

– Higher chance of USPTO approval

– Strategic awareness of the marketplace

– Stronger protection for your business growth

Whether you’re launching a new venture or expanding an existing one, don’t skip the search. Protect your business from the start — and build your brand with confidence.