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Learning about trademarks and service marks

You have several options, at varying costs. You could do a knockout search for free at the USPTO site, then complete and file your own trademark application with the USPTO, for a minimum of $325, which is the USPTO filing fee (at 9/07/2006) for a single class application ($325 more for each additional class). This option vastly increases the odds that your application will be rejected by the USPTO and your filing fee lost (risk number one), or that you will receive a cease and desist letter from the attorneys for the holder of some other trademark (risk number two), or both. No one we know of recommends this option in all cases. If you luck out, however, this is the cheapest route to trademark registration.

What should you do if you go beyond do-it-yourself? If you think about it, there are just three questions: (1) whether or not the trademark is available (2) whether or not you can safely use the trademark right now and (3) if the mark is available and you can use it now, what is it that must be done to secure exclusive rights to the mark? Put another way, can you eliminate risk number one (problems with the USPTO) and risk number two (conflict with third parties)? To answer those questions, you must realize (as we point out elsewhere) that registration of a trademark is night and day different from registration of a domain name. The only reason to go beyond do-it-yourself is to increase the odds that the questions (above) will be resolved in your favor. There is no option available to you which will resolve all of those questions 100 percent in your favor. You need to choose the option which best increases those odds in a cost-effective fashion.

Your second option is the free knockout search, then have someone type up a trademark application with information you give them, then give it to you for signature and filing with the USPTO. This may slightly reduce risk number one because the company which does the typing may know more about what should be in such a trademark application than you do, but it will do nothing with respect to risk number two. This option will cost you approximately $475 (total). Once again, we are not aware of any responsible organization which recommends this option as a standard approach.

Your third option is the free knockout search, then have the search results reviewed and the application prepared by an experienced trademark law firm. This will more significantly reduce risk number one, but (again) will do little good with respect to risk number two, since any meaningful response to risk number two depends upon a more extensive search than the free knockout search. While we provide this option at a cost little more than the trademark typists, we do not recommend it.

Your fourth option is the free knockout search to see whether it is worthwhile to go further or not, then, if you are not knocked out, a more extensive search to cut risk numbers one and two. The cost of, and the reliability of, this more extensive search varies considerably. This is because trademark law is rooted in actual use in everyday life, and the same (or a confusingly similar) mark could be in use anywhere. You are unlikely to find a sufficiently thorough extensive search, anywhere, for less than $275. Adding this cost to the $475 cost mentioned in the previous paragraph yields $750, minimum. Responsible organizations which recommend this option also recommend that you have the completed package reviewed by an attorney before you submit it to the USPTO. This is because you have the search, but no one to look at it to see if there are obvious legal defects which should be dealt with before you spend the $325 (or more) filing fee.

Our recommended package: We recommend that you conduct a free knockout search to see whether it is worthwhile to go further or not, then, if you are not knocked out, that we arrange for a thorough extensive search with a search organization known for its reputation and thoroughness in the legal community. Then, when the extensive search is completed, we look at the search to deal with the obvious legal defects referred to in the previous paragraph, answer your legal questions and prepare the trademark application for filing with the USPTO. While we cannot eliminate entirely either risk number one or risk number two, if you follow our recommendation the undertaking which goes with that recommendation with respect to those risks applies. The cost of this approach is only $425 net (including the search) if you decide not to proceed after the search and legal review, and $695 plus the $325 (per class) USPTO filing fee if you decide to proceed.

If you advise us that you have already conducted a trademark search which is satisfactory to you, and that you would like us to prepare your trademark application (see the third option above), we will do so for $285 (plus USPTO fees). We obviously cannot offer the undertaking which goes with our recommended method of procedure (or, for that matter, any undertaking at all with respect to your search).

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