Assessing whether a trade mark is available really involves two questions: is my trade mark available for use; and is my trade mark available for registration?
Availability for use is largely determined by what trade marks people are already using or have used in the past in relation to the particular goods and services that you want to use your mark for as well as the trade mark you want to use.
Unfortunately, this can be difficult to ascertain clearly. The extent to which people are using or have used a trade mark can be found in a number of places including the official Register of Trade Marks, but also other places such as Companies House, to see what names have been used for companies, domain names and even general use on the internet. In general, the more searching that you do to find out whether anyone is using something similar to the trade mark that you want to adopt, the better.
Availability for registration is a more straightforward question about whether, if you applied to register your trade mark for your particular goods or services of interest, you are likely to get it approved.
A trade mark will normally be available for registration if there are no applications or registrations for similar trade marks for similar goods or services already on the official Register of Trade Marks. Typically, we can answer this question after conducting a search of the official Register of Trade Marks.
However, even if the trade mark is available for registration, it still has to pass some more tests before it can be registered. Primarily, a trade mark must be distinctive, and not descriptive of your goods and services. So, for example the word BOOTS can be registered as a trade mark for toothpaste, but not for footwear.
For advice on the availability of your trade mark and assistance with trade mark clearance searching, please get in touch to speak to one of our trade mark attorneys.