Thursday, November 13, 2008

Trademarks:Some tips for searching for images at the USPTO

Based on my experience helping people at our reference desk, I would argue that images are perhaps the greatest source of confusion for fledgling trademark searchers. I suspect that this is because the predominant 21st Century searching habit -- namely, keyword searching -- relies on matching words directly rather than filtering words through an index. Given the amount of information available through the Internet, keyword searching works just fine to call up text-based resources, but it really falls short when it comes to non-text information like pictures. Image searching through popular search engines is OK when you quickly need a picture of, say, an ostrich pulling a cart, but for a legal need like a trademark search, when a business' identity (not to mention a lot of money!) is at stake, something more reliable is necessary.

Anyone familiar with the United States Patent Classification understands just how seriously the USPTO takes their indexing. And for the same reasons patent searchers must take the time to learn the USPC, a person eager to perform a comprehensive trademark search at the USPTO would do well to learn how to use the trademark Design Search Code Manual.

Every trademark that is based on an image is assigned a Design Code (DC) at the time of registration. Once registered, those marks are available through the Trademark Electronic Search System (TESS) and are searchable through that DC that an examiner assigned. To find marks containing a specific image, a searcher can find the corresponding DC number using an online version of the Design Search Code Manual (sorry, no acronym for this one).

That's a mouthful, I know, but it's really more simple than it sounds. The idea is that you can look up words that describe what your image is, match those words to the appropriate DC number, then look up that number in the trademark database to inspect other marks that have that DC number.

Let's say, for example, that I have a line of gardening gloves. I call them Moose Gloves and I've had a gifted artist create this logo as my brand:
Before I register my new trademark, I want to make sure that nobody else has registered a mark in the same class of goods that resembles my mark.

Using TESS, I can search for the words that I plan to use in my mark, but I also want to make sure that I catch any similar images before I send the application. To do this, I'll consult the Design Search Code Manual. Under "M," I scroll down until I see moose (that's what the drawing is, by the way). The Manual tells me that the DC number for moose is 03.07.07.

If you're not entirely sure that a DC number adequately describes your image, you can click on the number to get examples. I should also mention that the Manual is pretty comprehensive and includes codes for geometric shapes, celestial bodies, mythological figures, ethnic groups -- if you can imagine the variety of trademarked images you've encountered in your life, just think that there's a DC number assigned to each.

To continue with our example, now that I have a DC number for my moose, I can go to TESS, choose the "structured form search," then enter the number (without punctuation, so my moose would be "030707"). In the drop-down menu in the field box, choose Design Code. If you want to narrow the results of the search, you can also enter a US class number in the second search box. (Class numbers are found using the Trademark Acceptable Identification of Goods and Services manual, which you can access online here.) If you do enter a search term in the second box, make sure to change the operator, on the right side of the screen, from "or" to "and."

When you click search, this will bring up a list of all, if any, registered marks that match your search. To browse the images that came up from your search, look for a blue button at the top of the screen that says "image list." Clicking this will bring up just the images in a way that makes it easy to scroll through and look at your search results.

None of the artwork that came up from my search were of the same caliber as my moose, so it looks like I'm safe. Remember that, as always, the idea is to have a mark that is not confusingly similar to another mark in the same class. Happy hunting!

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