How to Check a Trade Mark is Not Already Taken
Emily Young
Registering a trade mark is a great way to protect your business’ intellectual property (IP). Before registering a trade mark, it is important to check that someone else has not taken it already. With so many trade marks registered, the trade mark search process can be overwhelming. This article will explain why it is important to check if a trade mark is available and how you can search trade mark availability.
Why Check if a Trade Mark is Taken?
Before registering a trade mark, you need to ensure that it is available. Trade marks that are identical or similar to the one you want to register will not be available for use. Using a trade mark that is already in use will make you liable for trade mark infringement. This can have a number of consequences, both financially and to your reputation as a legitimate brand. Conducting a trade mark search using a trade mark database is the best way to check if a trade mark is available for you to use.
Using ATMOSS
ATMOSS is IP Australia’s free trade mark search tool. You can use this search tool to check for registered or pending trade marks that are already in use in Australia. ATMOSS will not only show you if a trade mark is in use, but it will also give you access to the details of the person or business who made the initial filing. This is useful information if you want to get a license to use the trade mark.
ATMOSS can also filter by trade mark classification. A trade mark similar to yours will be available for use if it falls into a different category of goods and services. It is important to consider what classification your goods or services fall under to help you narrow your trade mark search. To find out the classification of your goods or services, use IP Australia’s search tool.
You can also create an account on ATMOSS. This is a great way to save your search results, allowing you to conduct your search over several days.
Using the WIPO Global Brand Database
If you are registering your trade mark overseas or have plans to expand your business overseas, you must check for the availability of your trade mark in the relevant countries. The World Intellectual Property Organisation’s (WIPO) Global Brand Database is a useful search tool that contains trade marks from all members of the WIPO.
The WIPO Global Brand Data Base has similar search functions to ATMOSS, with the added feature of filtering by country. Although the Global Brand Database covers a large range of trade marks, it does not include trade marks filed directly with a country’s IP office. Instead, it only includes parties to the Madrid Protocol, which is a trade mark system that allows for the filing of trade mark applications in participating countries in one application. Conducting a search using individual countries’ databases will help further reduce the risk of infringing on someone else’s trade mark.
What to Look For
It is important to know what you are searching for if you want your trade mark search to be thorough. Some things to consider when conducting a trade mark search include:
- spelling variations of your trade mark;
- searching for words in all relevant languages and translations;
- being as descriptive as possible when searching for image trade marks;
- narrowing your results to show only the relevant goods and services classifications; and
- narrowing your results to only show registered and pending trade marks.
With trade mark databases having so many trade marks in their systems, it is important to narrow your results to make the search manageable.
Key Takeaways
Checking if a trade mark is available for you to use can be a long and stressful process. There are so many things to consider when conducting a trade mark search, including:
- where to search;
- what to search; and
- how to properly use the database search systems.
Conducting a thorough trade mark search upfront can help save you time and money in the long term. For help conducting a trade mark search, contact our experienced trade mark lawyers on 1300 657 423 or fill out the form on this page.
Frequently Asked Questions
You cannot use trade marks that are already in use by someone else. Using someone else’s trade mark may have financial consequences and cause damage to your reputation.
IP Australia has developed a trade mark search tool called ATMOSS. This search tool is free for public use, making it a great resource to search for all Australian trade marks.
The World Intellectual Property Organisation’s (WIPO) Global Brand Database is a free resource to search for international trade marks. This database contains all trade marks registered under the Madrid Protocol. You must find trade marks registered directly with a country’s IP office using the relevant country’s own trade mark database.