Chapter 4 : Making Your Trademark Unique

The key to a successful trademark is making it unique.  In some fashion, you need to have a trademark that will stand apart from all others.  You also need to have a trademark that will somehow jog the memory of those that see it so that they can know it.

This is a complex consideration.  For some, it means hiring a professional to design the trademark.  Yet, you should also understand what it takes to make a trademark actually be qualified to be registered.

As we have discussed, a trademark must be unique.  If someone where to design a trademark like your own, you would want the United States Patent and Trademark Office to reject it.  The same thing goes for you and your design needs.

You need to develop and design a trademark that is completely unique and your own.  It can’t be too similar to other people’s already registered trademarks.  More so, it has to be unique enough so that your consumers don’t confuse it with other products or services on the market.  This would make the trademark worthless.

How Unique Is Unique?

First things first, you want to insure that your trademark is unique enough to pass the trademark searches and to be legally able to be registered. 

There are some ground rules that are established by the USPTO that can help you to understand just how unique the trademark has to be and what’s required of it to be considered a unique trademark.

When you apply for a registration for your trademark, the first thing that will be necessary is for a trademark search to be completed. 

For this to happen, an attorney will be assigned to investigate.  The examining attorney, as they are called, will then search the United States Patent and Trade Office records to insure that your trademark is completely unique and not too close to another’s trademarking symptom or design.

The attorney is looking at your trademark in comparison to others. 

Is there any conflict? 

Is there any likelihood that someone could be confused when they look at your trademark and a trademark of another?

If there is anything that could be found in the records of the USPTO and the mark that is recorded on your application, your application will not go through.  They will also use this application process to determine if your trademark is too much like one that is pending approval as well.

What They Look For

The examining attorney will consider several aspects in relation to your trademark.

  • The similarity between your mark and the other marks already on file and those that are pending is considered first and foremost.
  • The relationship between your trademark and the goods and services that you list on the application.

What gets confusing for a person that is filing for a trademark is what is considered the same or similar?  It only takes the trademark to be similar to that of another trademark for the process to be stopped. 

In addition, it only takes a service to be related to another to cause the trademark to be stopped.  Goods and services that are too closely related in relation to their trademark are conflicting as well.

When Conflict Happens

If and when there is a conflict and your trademark is considered to be too close to that of another’s trademark, the application for your trademark is denied and refused by the examining attorney.

If there is another application that is pending acceptance at the same time that yours is and each of you has a trademark that is similar, the trademark application that was submitted first will have the priority.  You will be notified that there is another application pending that has a trademark that is similar to your own.

In that, should that trademark not go through for some reason, then your trademark would be eligible to be filed.  Should that trademark actually go through and become registered, then there is a conflict and your trademark would not be filed with the federal process.

The examining attorney makes the decision regarding the issuance of how similar to two trademarks can be. 

Should there be enough similarity; the trademark filed second is not accepted.  This can be quite difficult to take on considering you may have spent dollars and hours working on developing the right trademark for your specific business or product.


In order to know if your trademark is unique enough, you can have a pre search of that trademark done for you. This allows you to learn if there are other trademarks that are already registered that could potentially conflict with your own.  This provides you with some protection from being rejected after all the work you put into the process. 

Yet, you should know that the United States Patent and Trade Office does not perform any type of preliminary or pre-searching of the records for you before hand.  You can not ask them to check the records to insure your trademark is not on file.  They can’t tell you if there are any conflicting marks out there.

Yet, you can get help in finding out this information, which is something you should definitely consider doing for your own protection.

By having a trademark search done before you enter an application, you provide for several key factors.

First, you make sure that your trademark does not infringe upon anyone else’s trademark.  This is vitally important since you do not want to have your trademark conflict and therefore be rejected, wasting your time not to mention your money.

In addition, by having a search done before you are actually filing the application for a trademark, you also insure that your trademark application will be registered successfully the first time.

By going through the search phase beforehand, you learn if your trademark will be Okayed to move through the process of if it will be facing several risks in doing so.  Ultimately, you want to insure that there are no risks, or every few in your way to trademarking your image, design, logo or your name.

There are several ways that you can get a search of the trademark database to learn this.  These records, remember, can not be searched for you by the USPTO until you file a petition. 

Free Searches Found Online

There are some abilities to do this search for yourself without charge online.  This is one of the most simplistic of types of searches that you can do.  And, it’s not a definite to ensuring that there are no blocks in the road coming up.  Yet, it can be helpful in helping you to determine if there is a possible problem and to solve it before you enter into anything more costly.

You can easily use any of the larger search engines to get the information that you need.  Start with Google.  All you have to do is to type in your trademark name.  You should also search for a description of your product.  Doing this will determine if there are any other companies out there that are using your name, saying, or logo.

If there are similar names and goods out there, it is best to just stop there.  If a simple search like this can turn up several key problems, then a detailed search on the USPTO records will definitely show a problem.

Perform one search with both the name of the trademark and a description of the product.  Then, perform another search that includes just the logo or trademark name.  If both clear, move on to the next searching tool for additional reassurance that your trademark is actually capable of passing a registration application test.


The TESS is another option that you have.  TESS, or Trademark Electronic Search System is a free trademark search that is done online.  This service is one that is offered by the United States Patent and Trade Office itself. 

This service is one that you should use next.  It allows for you to search the database of trademarks that are similar or the same as your own.  Here, you will use the same types of strategies to search for trademark conflicts as the examining attorney will.

Yet, you need to be careful in this search.  Do not assume that just because your trademark does not come up in the TESS system that it is okay to go through.  The problem lies in trademarks that are different but similar.  For example, if you are selling the same type of product that another company is and your trademark is just another name for theirs, this is considered to similar and therefore it will be rejected.

With the TESS system, though, this type of problem doesn’t show up to you.  Therefore, you still could potentially have a problem with your trademark even after all of these searches come up clean.

The only way to know for sure if your trademark will be registered is with a trademark attorney.

US Trademark Search

Another option that you have is to hire a company to do the searching for you.  While they can’t tell you 100 percent for sure if your trademark is going to be registered, they are the best bet for you to insure that your trademark is authentic enough to pass.

A US trademark search is also known as a Federal Trademark Search.  It is conducted by a trademark search company.  This search will entail a complete search of the trademark records and gives you the best possible likeliness of the trademark passing.

It is usually conducted by a trademark attorney that is familiar with and working with the USPTO service therefore understands the ins and outs of the business.  They will provide you a detailed report that analyzes the potential for your trademark to actually become a registration as well as defining why not.

These companies do charge you and their fees can range quite a bit.  Yet, many people feel that knowing that their trademark is actually likely to go through is worth this additional cost.

One word to the wise before you proceed though.  You should realize that not all companies are out there for your own good.  Talk to several; compare what they offer as well as what they charge.  Check them out with the Better Business Bureau to gain even more information on the likelihood that they are working with your best interests at heart.

Understanding the importance of having a trademark that will pass registration is important.  Although many people will submit applications for trademarks, only a select few will be granted them because they have done their homework to insure that their trademark is their own.

Although paying for this type of a search should be something you consider, take the time beforehand to do the free searches yourself.  This can help to clear the way for any easily found problems so that when you do pay for a search, it is going to be one that comes back with the best possible results.

Now, how should you create that trademark in the first place?

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