WHAT DOES A BASIC CLEARANCE SEARCH DO?
A Basic Clearance Search provides a review of the registered Trademarks and pending applications that are similar to yours both phonetically and in overall appearance. The Basic Clearance Search is helpful in finding obvious and direct conflicts that may prevent the registration of your proposed mark, or cause potential disagreement with another party down the road.
CAN I REGISTER MY MARK IF SOMEONE ELSE HAS A REGISTRATION ON IT (OR SOMETHING SIMILAR TO IT)?
Maybe. When you file your U.S. Trademark application, it will be assigned to an Examining Attorney at the United States Patent and Trademark Office (USPTO). The Examining Attorney will search the USPTO database to see if conflicts exist between the mark in your application other marks that are registered or pending.
The key factor that the Examining Attorney will look for is the ‘Possibility of Confusion’ between your applied-for mark and another one that is registered or pending. There does not have to be showing of actual confusion, just the possibility of confusion between the marks. The Examining Attorney will rely on a number of established legal tests in identifying whether the ‘Possibility of Confusion’ exists. If such a possibility is found the Examining Attorney will refuse the registration.
CAN I STILL USE MY MARK IF SOMEONE ELSE REGISTERED IT?
Maybe. This will truly depend on the pre-existing registration, including similarity of that mark to yours, similarity of the goods or services, the willingness of the registrant to take action against you, in addition to a multitude of other factors. It is important to understand that if you use a trademark that is already registered by someone else, you do so at your risk.