How to check whether a name is available as a trademark

Why searching for the exact name is not enough

The French Intellectual Property Code prohibits the registration of, and allows the cancellation of, a Trademark that infringes prior rights (article L711-3). These rights include: an identical or similar Trademark for identical or similar goods or services where there is a likelihood of confusion, a company name, a trade name, a business sign or a domain name whose scope is not merely local.

Two practical consequences:

• a similar Name, in spelling or in sound, can be just as problematic as an identical Name;
• you need to check several registers: Trademarks, but also companies and domain names.

The four checks to carry out

1. Trademarks

Search French Trademarks (INPI) and, if your business extends beyond France, European Union Trademarks (EUIPO). For each similar Trademark, look at:

• its status: registered, under examination, expired, withdrawn;
• its classes of goods and services: a Trademark is only protected for what it covers;
• its owner and its filing date.

2. Companies

A company becomes the owner of its company name upon registration, with nationwide protection. The trade name and the business sign are protected from their first public use, in the area where the business operates or has customers. Reusing such a name for an identical or similar activity may be penalised as unfair competition.

3. Domain names

Check the main extensions (.fr, .com, .eu…). A domain that is already taken does not necessarily block your Trademark, but it often reveals an existing project, and it may constitute a prior right if it is used beyond a local scope.

4. Social networks

This is not a legal register, but an account already active under the same name can cause confusion among your audience.

Reading the results correctly

• An identical Trademark in a distant class (for example chemicals when you sell clothing) generally poses less difficulty than a similar Trademark in your own sector, unless it is a well-known Trademark.
• An expired Trademark no longer protects, unless its owner renews it during the 6-month grace period.
• A Trademark registered more than 5 years ago and never used may be subject to a revocation request for non-use.

These points are assessed on a case-by-case basis. If in serious doubt, an industrial property attorney or a lawyer can help you assess the risk.

What next

If the Name appears to be free, file it as a Trademark for the goods and services you are targeting: this is the strongest protection. If a similar Name exists, it is often easier to adapt your idea now than to have to change names after investing in a brand identity, a website and materials.