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How to Run a Trademark Search for Your LLC Business Name: A Step-by-Step Guide

LegalGPS : Aug. 2, 2024

7:03

Whether you want to register your trademark or not, you still need to make sure your business name won’t infringe on someone else’s trademark. This is especially important when you're starting your LLC and trying to determine the name of your company.

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Sometimes even if someone’s last name (surname) is generic, it still might have been registered as a trademark because it acquired the proper level of distinctiveness. For example, McDonald’s is a registered trademark, despite the fact that thousands of people in the U.S. have that last name.

Similarly, the name “Schafly” is a beer brewing company and was sued by another person named Schalfly, who argued that the name was made famous by the other person, not the brewing company. The brewing company prevailed.

So, there are a couple of things to consider here. First, if your brand doesn’t matter, and you’re going to pick a generic name (think: Steve Jones Law; Ferguson Plumbing; Lawn Services, Inc.), chances are no one will have a trademark on the name, so you won’t have to worry.

However, there can be exceptions, so you still want to do a trademark search.

Trademark Search Options

You have a few options for a trademark search. You can:

Do it yourself;
Hire a company to do it (prices can range from around $200 to $800 for this);
Hire an attorney to do it and provide a legal opinion (prices can range from $1000 to $5000 for this).

Most people do none of those three simply because they don’t know about it. But, we’ll walk you through some guidance if you choose to DIY (of course, we have to mention that you should always consult an attorney).

The Ultimate Trademark Question

The ultimate question you're trying to answer is -- will a reasonable consumer confuse your mark with one that’s registered?

Just imagine that a company in your hometown has a registered trademark. Then you travel somewhere else and see a name that looks or sounds similar.

If you’re that person, might you think it’s the same brand? Is it possible you could confuse the brand in your hometown for the one you’re seeing at the store? If so, you can’t pick that name for your business.

Performing a Trademark Search

To start, make a quick list of words that could be used to describe your mark. If it is text (e.g. your company’s name), then you will search for that name and names that could sound or look/read similarly. If it’s a symbol or logo, your list should include all of its attributes to make your search more efficient.

Sound Matters. The name you’ve chosen can't be too similar to existing names that it may cause confusion.

For example, Salesly, a sales company, could cause a customer to be confused if there was another company named Sailsly, Inc. They are spelled differently but sound the same. The test is, “is there a likelihood that a customer could confuse the new name with the trademarked name.” In the Salesly example, if someone were only hearing about the brand (as opposed to reading about it), they would get confused.

Start informally to determine if anyone has a common law trademark

In the interest of time you may want to begin with an “informal” internet search. If the mark can be found quickly and easily by using Google, it makes sense that you start there. Search for the terms on your list in both the regular search and image search. Make a list of companies you find that are using something that appears to be similar to your mark and use these results to search more formally.

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Performing a TESS Search

You should also search on your state and the federal trademark websites.

The USPTO has a database, known as the TM Search System. Here's the TM Search link.

Within TESS, you can search for a basic word or a word and design combination. If you are searching for a design (rather than a word) you need to search the USPTO’s design database within TESS. Start by reading the design code manual. The platform is easy to use and equipped with step-by-step instructions.

Check out the USPTO resources as well to improve your chances of completing a successful search. They have incredible resources that can give you a lot of guidance, which are linked here.

Note that when you’re doing a search, you don’t necessarily need to include your corporate or LLC designation (i.e. “LLC” or “Inc.” or “Corp”)--unless that’s part of your branding.

Almost no customer identifies a company by its type of entity. For example, suppose we were searching for Legal GPS trademarks. In that case, we’d search for “legal gps” rather than “Legal GPS, Inc.” We’d also search for GPS, legal, global positioning system, and other variations.

What if you Find a Similar Mark?

It depends, but all is not necessarily lost. See below for some additional ideas, and also check out our Trademark Infringement Scoreboard in the Resources. It’s not exact, but it helps you get a better idea if you would be infringing on someone else’s trademark (or vice versa).

If Similar Marks, Do This

You can register a mark that is identical to one that already exists if the goods or services you make are almost entirely different from those made by the other company and the mark isn’t extraordinarily famous or distinctive (Confusing? We'll try to simplify it).

You can’t make a shoe company and name it Google or a furniture company called Kleenex. Those companies are so unique and significant that everyone would assume they owned your similarly named company.

If you find a similar mark that isn’t registered, see where they operate.

If their mark isn't registered, they still arguably have common law trademark rights. If they operate in a completely different market than yours, it’s probably okay, but consider consulting an attorney.

Sometimes your business might be national, especially if you’re an online-sales business; but if you’re a lawnmowing company in Kansas City, Missouri, and the similarly named company is a lawnmowing company in Austin, Texas, you’re probably not overlapping markets.

However, if you’re an arts and crafts company that sells nationally on Etsy, you arguably have the entire country as your market.

If you operate in the same geographical market, see if the product is similar.

You might be okay if the products are completely different and the name isn’t distinctive (for example, if it’s a suggestive name). Here are some examples:

If you’re selling hats, clothing is part of your industry;
If you’re a food truck, restaurants and catering are part of your industry;
If you sell technology, food is likely not part of your industry--so you’d be okay unless the company was extremely famous (Apple).

If mark and industry are similar, see if the mark is active or “dead.”

It will say this when you do a TESS search, which is explained above. If it’s dead, you might be able to use it, but first you’ll want to see if the original owner still uses it. If they do, they’ll still be entitled to common law trademark rights.

Do I need a lawyer to start an LLC?

The biggest question now is, "Do you need a lawyer to start an LLC?” For most businesses and in most cases, you don't need a lawyer to start your business. Instead, many business owners rely on Legal GPS Pro to help with legal issues.

Legal GPS Pro is your All-In-One Legal Toolkit for Businesses. Developed by top startup attorneys, Pro gives you access to 100+ expertly crafted templates including operating agreements, NDAs, and service agreements, and an interactive platform. All designed to protect your company and set it up for lasting success.

Legal GPS Pro

Protect your business with our complete legal subscription service, designed by top startup attorneys.