If you find you need a more detailed discussion than what is presented here, it is suggested you purchase a copy of "Trademark: How to Name a Business & Product" which features in-depth coverage of many issues only touched on here. The book is available as part of Seek's Deluxe Trademark Search Package, and may also be found in libraries and purchased from many local bookstores.

Reviewing Your Search For Conflicts

The Report is divided into four sections:

• Federal Registrations
• State Registrations
• Common Law Product Names
• Common Law Business Names

Analyzing Federal Registrations
You will probably want to begin by reviewing the marks in the Federal Registrations section, because an exact or close "match" in this area can easily spell doom for your mark. Carefully examine the records for any marks which are identical or very similar to yours. In particular you want to be on the lookout for marks which may be "confusingly similar" to yours-i.e.,marks which are spelled identically or similarly, and which would be likely to "result in customer confusion" if both marks were in use simultaneously.The courts use a variety of criteria to determine whether two marks are "confusingly similar." For a more detailed discussion, please see "HowCan I Tell if I Have a Conflict" below.

Analyzing State Registrations
Once you have finished with the Federal Registration, review the State Registrations using the same process. State Registrations are normally used by "local" retail, service and other businesses, who are not engaged in interstate commerce, or whose marks don't otherwise qualify for federal registration. You will want to pay particular attention to registration which might be "confusingly similar" in your own state, and in other states where you plan to be doing business. Otherwise, you should take a state registration simply as evidence that somebody is using that mark in some market. The fact that someone has registered a mark in Wisconsin, for example,will not prevent you from registering the same mark in California, nor will it necessarily prevent you from obtaining a federal registration.

Analyzing Common Law Marks
Finally, review the common law section of the report. The common law search covers over 30 million company names listed in business directories,electronic "yellow pages," credit reporting services and other databases,and some 2 million product names from trade journals and directories, product databases and other sources. Many of these marks are not registered at either the federal or state levels. Potential conflicts identified in the common-law section of the report are important because, in the United States,trademark rights can be conferred by usage alone. You could be held liable for infringing a mark, even though it was never registered anywhere.

As in the Federal and State Registration, you are looking for marks which may be confusingly similar to yours.

Bear in mind that the common law search is particularly likely to turn-up a number of small retail and service firms whose business is limited to their local markets. While these firms might be able to prevent you from adopting their name within their immediate markets (where it would be "confusingly similar"), they would not necessarily prevent you from using it elsewhere,or from obtaining a federal registration. In short, you should be very cautious about jumping to conclusions in the common law section. You should carefully evaluate any potential conflicts to determine whether you really have a problem, and, if so, just how serious the problem really is.

How Can I Tell If I Have A Conflict?

• How close is the resemblance between the two marks? Are they identical?Do they sound alike? Do they mean the same thing? How easy is it for the average person to confuse them?
• How closely are the goods and services related? Are they advertised in the same sources? Are they sold through the same marketing channels? Are they sold to the same customers?
• How strong or distinctive is each mark? The court will accord a much higher degree of protection to unique marks such as Xerox, than it will descriptive marks such as "Downtown Florist".
• How much do the products cost? Greater potential for confusion exists with inexpensive products where customers are more likely to make snap judgments than for more expensive products where people generally make more careful decisions.
• Is the mark being used on a variety of goods and services? Confusion is more likely if the mark is already being used on a number of different types of goods (by the same company), because customers are likely to think a new use of the name is simply an extension of the existing brand.

What Should I Do If There Is a Conflict?

If, on the other hand, your conflict is with a common-law mark, or one registered at the state level, it is possible that you may also be able to use it-and perhaps even get a federal registration on it-as long as you stay out of their markets.

In some cases, additional research may be necessary in order to determine who owns common-law or registered marks, whether they are currently inuse, and what types of goods and services are involved. Seek's information specialists are experts in this type of business and product research and would be happy to help you with any questions you might have.

Questions?

Please remember that Seek cannot provide you with any legal advice or give you an opinion as to whether you can register or use a particular mark. Referrals are offered to reputable attorneys shoud you wish to pursue.