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Why is it so important to search for prior trademarks?

Owning a trademark grants the exclusive right to use that mark in the course of trade for all goods and services covered by the mark. Moreover, the owner of a trademark may, in principle, bar any third party from using the same or a similar mark for identical or similar goods and services in the geographical region for which the trademark is protected. Of course, this includes the right to prevent others from registering the sign as a trademark themselves.

Therefore, it is not only the registering of a trademark that may infringe the rights of the owner of a prior trademark, but also the mere use of the sign on or for the relevant goods or services.

Taking into account that several hundred thousand new trademarks are registered every year in the EU and its member states alone, conducting a search for prior rights before filing a trademark application or using the sign will significantly diminish the risk of violating third party´s rights and being involved in costly and time consuming court proceedings or opposition proceedings.

Of course, there is quite a number of public databases in the internet, most of them provided by the trademark offices, where a free of charge search can be conducted by everyone and we recommend to do so when planning the use of a certain sign in the course of trade or the registering of said sign as a trademark. If such simple search already reveals the existence of an identical or highly similar trademark in the relevant country, it may be advisable to consider another sign to be used for the intended purpose.

If the simple search does not result in finding an identical sign, a professional trademark search should be conducted, simply because professional researchers and experienced trademark lawyers will be much more capable of assessing whether a prior, but only similar trademark poses a threat to the use of the younger sign or its application as a trademark.

It goes without saying that in almost every case the costs of a professional trademark search are many times less than that of legal proceedings. In Germany, for example, the costs of first instance court proceedings in trademark matters can easily reach an amount of EUR 5,000.00 - 7,000.00 - and will be even higher if the violation of a well-known trademark is claimed.

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