If You Think A Trademark Search Is Easy, You're Not Doing It Right!
The most fun I've had in developing products is creating names for them.
Branding is a mental adventure into an unstructured and limitless world of words and sounds. You can try to add structure to it by putting it on your to-do list or calendar -- 3:00 - 5:00 p.m.: Come up with a name -- but branding, for an inventor, is autonomic. While the left brain develops the invention, the right brain wanders its infinite universe in search of a suitable name.
When a brand presents itself to us, however it arrives, we screen it for various kinds of appeal (see 10 Top Tips For Branding Your Invention ). Then, just like we conducted a preliminary patent search to make sure our invention did not infringe on someone else's patent rights (see Be Like Sherlock In Your Patent Search), a preliminary trademark search needs to be done to keep us away from trademark trouble. This search, by the way, is not as much fun as coming up with a name.
The Trademark Office defines trademark as "a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product." (USPTO Basic Facts About Trademarks)
The rights to a trademark belong to the "source" (i.e., company, individual, or other entity) that uses the mark first in interstate commerce. If another company uses the same or similar trademark for a similar product in a way that could confuse consumers about the source of that product, the first to use the mark would generally prevail in an infringement suit.
I offer the above information as rationale for the recommended search strategy -- namely, that you search for your name, all its possible spellings, similar names, names that rhyme with your brand, and whatever variations of your brand name you can think of that might lead to consumer confusion concerning a competitor's brand.
Search The Web
The first place to look for your name is on the Web through your top three favorite search engines and relevant databases. For example, you can do a general search of the web on Google.com, and you can search Google News, Google Scholar, Google Images, or other focused databases for your mark.
Let's say I invent a musical instrument that has a sound similar to the ancient Chinese bian zhong. I would like to use the brand "Chinatone." When I Google that word, I find that there is a company called Chinatone that provides internet and mobile telephone services. And there are other users of the brand Chinatone, like those who provide special ring tones for mobile phones. Then I check search china tone, china toon, china tune, china bone, china phone, sina tone, and so on. I repeat this search in three other search engines and several focused databases.
I do not find Chinatone or the 15 variations I've created in use for a musical instrument. If I found it or a close variant in use for a product similar to my invention, my search for Chinatone would be over and I'd have to go back into my Zen state for more inspiration.
If you do find your brand name is in use to designate a different product, company, service, or web address, you might re-consider your selection of the name. Is the product selling successfully? Worldwide? Is it a mass market product? Does the product have a negative image? There are many reasons, good and bad, that should go into your decision to retain or drop the name for your own product.
What about the web address? If it's already taken, will that be a factor in your decision to use the name? Sometimes you can tweak the spelling or punctuation in the brand to come up with an equally appealing name that has a web address available. Depending upon the activity at the original web address, you may be able to purchase the domain name at a reasonable price.