As previously mentioned free trade mark searches are available online using the ATMOSS trade mark database and other official databases.   Research should be performed not only with a view to selecting a distinctive name or brand with consumer appeal, but also to ensure there are no registered or unregistered marks similar to the trade mark you are contemplating using.   A comprehensive search should be undertaken,  at a minimum,  of  direct hits obtained via  a search of the IP Australia online trade marks database and the ASIC database of company and business names.

It is recommended that a more comprehensive search of international databases, such as the USPTO database TESS (Trademarks Electronic Search System) and European Communities trade mark database. How exhaustively you search is a matter for your discretion,  how you formulate your search and what IP databases and other resources you consult in the screening process.  A comprehensive trade mark availability search should be conducted to obtain the best intelligence.

The beauty of registered databases is that an applicant can conduct online searches for image or graphical features/design elements,  business, company and surnames using similar tools, the operation of which may vary slightly from country to country.

Common law searches to detect unregistered trade marks extend beyond Government national and international databases.   Applicants often search nationwide telephone directories,  the internet using different search engines, and domain names using InterNIC or Thompson & Thompson’s SAEGIS domain name database for a small fee.

Industry specific publications, trade journals, dictionaries including geographic dictionaries are also valuable sources of information.  The global nature of the Internet and the increasing prevalence of cross border trade underscores the importance of conducting searches in major industrialised countries.

Considerable expenses may be incurred by you in developing stationary, business cards, and branding your business, only to discover that you are in violation of an unregistered trade mark,  not to mention being exposed to infringement proceedings.

Some  Applicants choose to use the services of professional search companies or Trade Mark Attorneys for the purpose of either conducting the searches and/or interpreting their results.

Systematic searches for trade marks  being used anywhere in the world are useful in locating uses of the proposed trade mark.    There are proprietary fee based services available with search engines  that use analytical tools providing greater opportunities for searching.

You may consider searching for homonyms,   synonyms,  phonetic equivalents, acronyms and  mis-spellings .   Whilst this may seem expensive and time consuming,  it should be balanced against the needs to be balanced against the considerable considerable cost savings in the long term.

Your search strategy depends on many variables such as the size of your business, your budget, your future goals and how you plan to use your mark.    However,  bear in mind that the advent of the internet has brought into conflict businesses and trade mark owners operating in different geographical territories which were formerly unaware of one another’s existence.   The frequency of these conflicts are increasing at a massive rate.  Well resourced companies with strong brands have been known to employ aggressive strategies to protect their trade mark,  launching litigation in several countries against a business, even where it only operates in a local market.

Screening for potentially conflicting trade marks is far more than a mechanical task of typing in words or phrases and generating search results,  and requires the application of  judgement,  experience and access to  comprehensive and analytical searches with powerful proprietary tools.

SAEGIS  trademarkscan is widely recognised as a powerful tool popularly employed by intellectual property professionals.

It is important to bear in mind that registration under the Trade Marks Act 1995 (Cth) in Australia there is a presumption of registrability only.  There is no guarantee that having obtained your certificate of registration you will be invulnerable to having your trade mark  challenged.

Whilst s112 of the Act provides for the voluntary recording of claims to interests in respect of trade marks within the Trade Marks Register, such as mortgages, security interests and licences, this is voluntary only.

You may find particularly where a Trade Mark owner is a company that a mortgage of a trade mark may appear on the Register of Company Charges yet not appear in the Trade Marks Register.  Therefore if you wish to find out whether or not a particular trade mark has been mortgaged it is recommended that a search of both registers be conducted when dealing with a company.  However, there is no guarantee that neither search will provide certainty as to the status of a particular trade mark.

The Trade Marks Register cannot safely be relied upon to determine the ownership of a given registration.   S109 of the Act requires that either the registered trade mark owner or the person to whom it has been assigned apply for the details of the assignment to be entered into the register.

However the effect of the assignment will be valid irrespective of whether it is filed in the Register.