Check your brand is available

  • Guide

Once you have selected your goods and/or services, you are strongly advised to ensure that your trademark is available in the sector in which you are interested.

IMPORTANT: This check does not form part of the Office’s legal obligations during the administrative examination of the application. If you skip this check, you run the risk of being prosecuted for infringing a trademark registered earlier by someone else, who may seek not only to have the registration of your trademark annulled, but may also claim damages.

A trademark is considered to be available if it does not reproduce or imitate a sign that is already covered by a prior right for goods and/or services identical or similar to yours.

The availability search, also known as a prior art search, can be carried out:

  • through the Office (for a fee), to check that there are no identical or similar trademarks registered in identical or similar classes of goods and/or services - if your trademark is a figurative mark, you should also consult the National Design Register at the Office.
  • In the Trade & Industry Register, to ensure there are no identical or similar company or brand names in an identical or similar sector as the goods and/or services selected.

Prior rights are not limited to trademarks, designs, company or brand names. They can also concern copyright (e.g. the title of a book), personality rights of a third party (e.g. pseudonyms, people’s surnames or their image), the name of an organisation, a domain name, etc.

The prior art search, analysis of the results and the resulting decision on whether or not to file an application to register the trademark are all the responsibility of the person requesting the searches. However, given the complex nature of the process, it is strongly advisable to enlist the services of an industrial property consultant.

IMPORTANT: The absence of any prior rights does not guarantee that the Office will register your trademark. This is because the Office, when examining your application, may take the view that the sign you are seeking to register cannot be protected as a trademark (see the section “What cannot benefit from trademark protection?” under the heading “What is a trademark? “).