TESS TIPS
What is in TESS? The Trademark Electronic Search System (TESS) contains the records of active and inactive trademark registrations and applications, some of which could be found in the USPTO's examination of your application to be grounds for refusing to register your mark, i.e., if the examining attorney determines that a "likelihood of confusion" exists.
What is NOT in TESS? Some trademark owners with valid and protected trademark rights do not choose to register their marks with the USPTO, so those marks will not be found in this database. However, you should still consider these other marks when adopting a mark for your goods and/or services. If a trademark is being used in the United States, the owner may have legally protected rights that are not the result of the USPTO registration process. You may therefore wish to consult a trademark attorney or professional trademark search firm for a more comprehensive search of, e.g., state registrations and common law marks.
Why should I perform a search? The purpose of the search is to help determine whether a “likelihood of confusion” exists, i.e., whether any mark has already been registered or applied for at the USPTO that is (1) the same OR similar to your mark; and (2) used on related products or for related services. Note that the identical mark could be registered to different parties if the goods and/or services are in no way related, e.g., for computers and soft drinks. For more detailed information about "likelihood of confusion," including examples, click here. WARNING: If your search reveals another mark that would definitely "block" your application based on the above standard, please note that if you file anyway, the filing fee is a processing fee that the USPTO does not refund even if registration of your mark is refused.
Will my mark register if I do not find anything in TESS? No, not necessarily. USPTO attorneys make decisions on whether marks may be registered. After you file your application, the USPTO will conduct its own search and other review, and might refuse your mark, based on several different possible grounds for refusal. (Once you submit your application, the USPTO will not cancel the filing or refund your fee, unless the application fails to satisfy minimum filing requirements. Filing an application does not guarantee registration.)
How should I search? The USPTO cannot provide guidance as to how you should search, beyond the linked HELP provided at the top of the first page of the TESS site. However, you must understand that a complete search is one that will uncover ALL similar marks, NOT just those that are identical. In addition to studying the marks, you must also closely study the listed goods and/or services to determine possible “relatedness.” Searching for trademark availability is not the same as searching to register through a domain name registrar a ".com" address, which focuses on exact or "dead on" hits, with no consideration given to similar names or use with related products and services. Also, if available, the domain name registrar may register a ".com" address on the same day as your search. The trademark registration process, on the other hand, is more complex. As part of the overall examination process, the USPTO will search its database to determine whether registration must be refused because a similar mark is already registered for related products or services. We do not offer advisory opinions on the availability of a mark prior to filing of an actual application.
Where can I find a table of color linings for older marks that were not filed in color but instead had drawings “lined” for color? The table of color linings is available at http://tess2.uspto.gov/tmdb/dscm/dsc_gl.htm#g15 (subsection G of Guideline #15).
