Trademark Searches (Part 1) — Availability and Exclusivity Searches


What we call a Trademark Search is not so
much about the search itself, It’s what we do with it.
So, in particular, you’re here because you’re interested in an availability or
an exclusivity evaluation of a Trademark Search. So, what this means is that we’re
going to do a “full search,” not just a Trademark Office Search (I’ll tell you why
in a second). And we’re going to look at State Registrations, Common-Law Uses,
Social Media, and E-Commerce uses as well. The reason why a Trademark Office Search
sometimes called a “knock out search” isn’t enough especially in today’s world
with the internet (you’ve heard of it right?) The Trademark Office Search isn’t
enough because it’s only going to show you marks that have actually registered
or marks that people have applied for registration for in the past.
Well, that’s only part of the picture. That doesn’t tell you whether someone might
have a registration in your state or another state that would stop you from
using your mark, which means it wouldn’t be available. And then there are Common
Law Rights. And because again the internet, Common Law Rights are much more
powerful today than they were just 20 years ago. And then of course you have
these Quasi Trademark Systems that are growing and developing. They’re
really new, so the rules about these things change all the time. So, you want
to look at Amazon, Shopify, eBay and of course social media accounts because
what good is a brand name if you can’t promote with it as well? Now, notice here
I’m kind of separating Availability and Exclusivity, and you might be asking why?
And the reason is because something can be available for use as a Trademark
or Trade Name, I should say, but it’s not exclusive. You can’t get exclusivity. You
can’t get registration for it. An example for this might be a hot dog stand right?
And you might say, “Well, I want to call my hot dogs Warm Fresh Hot Dogs.” Well, that
name is almost certainly available because it’s so generic right?
But you’re never going to get exclusivity for the name Warm Fresh Hot
Dogs. So, that’s one example of a distinction between the two. Exclusivity
is for brands that in a consumers mind are going to be uniquely associated with
that source of origin of the product– of a hot dog. And that can be acquired,
something called distinctiveness. So, that’s why something like, Pete’s Hot Dogs,
and you’ve probably seen those stands around with their unique logos. They’ve
been able to establish some exclusivity, but it took a lot of marketing and a big
budget to do that. So, that’s a distinction between availability and
exclusivity. And now you know why you need to have a comprehensive search to
look at all of these different channels of commerce before making a decision to
use a mark. See you in the next video.

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