Having identified one or more possible marks for particular product, the next step of the mark selection process is checking the marks availability for use. A screening search of federally and state registered trademarks usually makes an effective initial cut at an availability search. The purpose of the search is to determine if others are already using the same mark for similar goods and services. If the search identifies another identical mark, the next step is to determine if the registrant is still using the mark. Do not adopt a mark that is identical to mark already registered and in use by another without acquiring rights to use the mark in some other way.
When the initial screening search results indicate an absence of a registered mark corresponding to one or more of the searched candidates, then one conducts a more detailed search on one or more of the remaining candidates. The purpose of the second search is to identify other marks that are similar in sound, appearance, or commercial impression to the selected marks. Avoid adopting a mark that is similar to another mark already in use for similar goods and services, because likely confusion among ordinary consumers prevents the mark from distinguishing one’s own goods and services.
In this respect, the public is a silent third-party in trademark matters. The applicable standard to apply when considering a mark is whether an ordinary purchaser of such goods and services would likely be confused as to the source of origin of the goods and services sold under the mark. The source of origin referenced here is the brand rather than the manufacturer’s identity. Actual manufacturer the goods can be anonymous from a trademark perspective, as long as consumers purchasing goods under the mark are assured of receiving goods of consistent quality from a source authorized to use the mark. In this way, a trademark is an assurance that the brand satisfies a quality level the consumers have come to expect. The touchstone of this consumer assurance is merely that the owner the mark asserts control to assure that the quality of goods sold under the mark is consistent. Trademark law does not impose a requirement for any particular level of quality. The quality level can be whatever level the user of the mark selects, including uniformly low-quality, as is in the case of some economy goods.
When assessing the likelihood of confusion, it is important to recognize that ordinary purchasers have different characteristics depending upon the nature of the goods and services. Where the goods are quite expensive, consumers are likely to be more sophisticated about the buying decision and less likely to experience confusion among similar brand names. Similarly, where the consumer is a professional purchasing agent regularly doing business in particular types of goods and services, there is reduced likelihood of confusion among similar brands.