An investigation conducted in order to determine the availability of a proposed mark. A search report is typically generated by a professional search firm or law firm containing 50 -100 trademarks that may be related enough to the proposed mark to create a risk of infringement. The report is then analyzed by an attorney in order to assess the legal strength of the trademark, and to determine whether prior uses of the mark present a risk to the client of incurring infringement liability.
There are several popular misconceptions about trademark searching. First, it is often said that trademark searching is optional. While it is true that you may have protection in a mark without searching, it is also true you may be held liable for willful trademark infringement if you fail to search.
Second, it is commonly believed that searching identical or near-identical marks will suffice. This is not true, because the standard for infringement is confusingly similar, which encompasses marks that are less related than near-identical.
Finally, some unscrupulous trademark search firms imply that the searching "requirement" includes only federally registered marks. In fact, recent cases have said that not only are federal and state registrations important to search, but also common law marks, i.e. marks that are not registered. Incidentally, the reason some search firms propagate this myth is that they are unequipped to handle common law searching, and they don't want to lose business to the larger search firms who have tremendous common law searching capabilities.
