Establishing if a new trade mark is available for both registration and use is an important stage in the evolution of a brand. This is achieved by conducting an appropriate search of the Trade Marks Register, often in conjunction with other research tools.

It is only by conducting such searches that you can determine with greater legal and commercial certainty whether your chosen trade mark is free from third party encumbrances and capable of registration. The assessment of whether a prior trade mark or other earlier right constitutes a problem requires the input and expertise of a trade mark attorney.

The purpose of a trade mark search is twofold:-

(1) To determine that you are free to use the trade mark without infringing third party rights; and

(2) To establish if the mark is capable of registration under the existing rules and practice guidelines

On occasion it is advisable to conduct a common law search to ascertain whether a third party has prior use of your chosen trade mark because such use can prevent both your application for registration and your ability to use of the mark in question. This type of search is generally conducted in countries which respect and enforce user rights (as distinct from registered rights) against third parties. The UK, USA and Australia are among the countries that, in certain circumstances, do so.