Freedom to Operate: Clear Your Brand Before Launch
Antes de lanzar su marca en EE. UU. o en nuevos mercados, verifique que el camino esté libre.
A name that passes a quick USPTO search can still be blocked by an unregistered prior user, a marketplace seller, a foreign registration, or a competitor's packaging. We clear new names, logos, and product looks across federal, state, common-law, online, and foreign sources, and deliver a written risk assessment with options, not a bare yes or no.
Concerned about one specific mark?Trademark Infringement Opinions →
A knockout search finds the obvious problems, not the expensive ones
A quick search of the USPTO's records, now run through its Trademark Search system (which replaced TESS in November 2023), shows identical and near-identical federal filings. It is a useful first screen. It does not show the regional restaurant chain that has used a similar name for fifteen years without registering it, the Amazon seller with a growing following, the Florida state registration, or the earlier filing in Mexico or the European Union that will block your expansion.
In the United States, trademark rights come from use, not only from registration. A federal application gives nationwide priority from its filing date once it registers, but that priority does not defeat someone who was already using the mark before you filed (15 U.S.C. § 1057(c)). Those prior users are found through common-law searching, not through the USPTO database.
Freedom-to-operate clearance looks for every kind of conflict that could stop or limit a launch: registrations and applications, unregistered use, business names, domains and social handles, marketplace sellers, foreign rights in the markets you plan to enter, and, for packaging and product shapes, trade dress. The result is a written risk assessment that tells you what we found, how serious it is, and what you can do about it.
Clear before you commit to
- Packaging, labels, and inventory
- A domain, website, and social media handles
- Advertising, influencer, or trade-show campaigns
- A federal application, which is public once filed
- Distributor or franchise agreements naming the brand
- Expansion into Latin America, Europe, or Canada
Seven places a conflict can hide
We set the scope with you based on the brand, the products, the channels, and the markets. Not every launch needs every search, but each one we leave out should be a deliberate choice.
USPTO registrations and applications
Identical and similar marks, phonetic variants, translations, and design elements, in related as well as identical classes. Pending applications matter: an earlier filing can block yours.
15 U.S.C. § 1052(d)Florida and other state registrations
State trademark registrations, including Florida's under Chapter 495, and business and fictitious names in the states where you will sell. See Florida State Trademarks.
Fla. Stat. ch. 495Unregistered use
Businesses using the name without registering it, found through trade directories, industry sources, and web searching. These prior users can have rights that predate your filing.
15 U.S.C. § 1057(c)Domains and social handles
Registered domains, active websites, and handles on the platforms you plan to use. An available handle is not the same as a clear mark, but a taken one signals use worth checking.
Digital channelsAmazon, Walmart, and other sellers
Brand names on product listings, storefronts, and brand registries in your category. Marketplace conflicts can surface as takedowns soon after launch. See Amazon Brand Registry.
E-commerceTarget export and import markets
National and regional registers in the countries you plan to enter, through the Madrid System records and local counsel. Rights abroad are separate from U.S. rights.
Madrid · national filingsPackaging and product shape
Competitors' packaging, color schemes, and product configurations, registered and unregistered. We coordinate with patent counsel on design patents where the shape itself is protected.
15 U.S.C. § 1125(a)Clearing a brand for Latin America, Europe, and beyond
A U.S. clearance says nothing about Mexico, Brazil, or the EU. Each country grants its own rights. For brands moving in either direction through Miami, we clear the markets that are actually on the plan, and say clearly which ones we have not searched.
Madrid members. Brazil, Chile, Colombia, Mexico, and the European Union are members of the Madrid System, which has 117 members covering 133 countries. International registrations designating those markets appear in WIPO's databases, including Madrid Monitor and the Global Brand Database. National filings made directly in each office do not always appear there, so we confirm through each office's own register or through local counsel.
Non-members. Argentina, Peru, Venezuela, Uruguay, Ecuador, Panama, and Costa Rica are not Madrid members. Clearance there runs through national registers and local counsel, who also check local trade-name and commercial use. See Latin American Brands.
Europe. TMview, a free database built by the EUIPO and national offices, searches the EU trade mark register together with many national registers. It is a starting point; we confirm results with the national offices and local counsel before you rely on them. See European Brands.
WIPO itself warns that its Global Brand Database depends on what participating offices send and that a missing result does not show a name is available. That is why the foreign part of an opinion identifies each source and its limits.
How we sequence foreign clearance
- Rank marketsWhere you sell now, where you will sell in two years, and where you manufacture.
- Screen databasesWIPO, TMview, and national registers for identical and close marks.
- Local reviewLocal counsel searches and advises in the markets that matter most.
- Translate and transliterateCheck what the mark means, and how it sounds, in each language.
- File strategyMadrid designations or national filings, timed to protect priority. See Madrid Protocol.
The doctrine of foreign equivalents: your Spanish name may be translated
Under the doctrine of foreign equivalents, the USPTO and courts may translate a foreign word into English before comparing it with other marks or judging whether it is descriptive. It matters to any brand with a Spanish, Portuguese, French, German, or Italian name.
Would the buyer stop and translate?
The threshold question is whether the ordinary American purchaser would "stop and translate" the word. When the translation is direct and the language is common, as with Spanish or French, the doctrine is usually applied.
Doctrine of foreign equivalentsDescriptive words stay descriptive
A word that names the product in another language can be refused as descriptive or generic. The Federal Circuit upheld the refusal of VETEMENTS, French for "clothing," for clothing in In re Vetements Group AG (2025), and the Supreme Court declined review on January 12, 2026.
In re Vetements (Fed. Cir. 2025)Shared meaning alone is not enough
In a decision made precedential in January 2026, the Trademark Trial and Appeal Board allowed DANKE for chocolates despite a prior MERCI registration. Both mean "thank you," but the marks look and sound nothing alike, and the shared meaning carried little weight in that field.
August Storck KG v. Florend (TTAB 2026)How we search translated marks
We search the English translation as well as the original word, and the reverse for English marks entering Latin America. Our attorneys work in English and Spanish; we use qualified translators for Portuguese, French, German, and Italian.
Our methodTrade dress clearance follows different rules for packages and products
The look of a product can infringe even when the name is clear. Clearance for a new package or product design asks two questions: does our design come too close to someone else's protected trade dress, and can we protect our own?
| Product packagingLabels, boxes, bottles, store design | Product designThe shape or features of the product itself | |
|---|---|---|
| Can it be inherently distinctive? | Yes; packaging can be protected without proof of consumer recognition | No; under Wal-Mart Stores v. Samara Brothers (2000) it needs secondary meaning |
| Close cases | If it is unclear whether a feature is packaging or design, courts treat it as design | Courts err toward this category, per Wal-Mart |
| Functionality | Functional features cannot be protected | Functional features cannot be protected; a frequent issue for shapes |
| Burden on functionality, unregistered | On the party claiming protection | On the party claiming protection, 15 U.S.C. § 1125(a)(3) |
| Better protection may be | Trademark or trade dress registration | A design patent, coordinated with patent counsel |
◆ marks rows where packaging and product design differ. For registration, see Federal Trade Dress Applications and Florida Trade Dress.
Because product designs are protected only once they have secondary meaning, a competitor's shape may or may not be enforceable; clearance assesses its recognition and its functionality. Design patents are a separate right that can protect an ornamental shape from the day the patent issues, with no need for secondary meaning. Where a competitor's design patent may be in play, or you want one for your own design, we bring in patent counsel. Robert Thornburg is a registered patent attorney and coordinates that work with the trademark analysis.
A written risk assessment with options, not a yes-or-no
Clearance rarely produces a clean "yes." Most results fall somewhere on a scale, and the useful question is what you can do at each point on it. Every assessment we deliver rates the overall risk, explains the conflicts behind the rating, and sets out options.
| Risk level | What it usually means | Typical options |
|---|---|---|
| Low | No close marks for related goods; nothing found that suggests strong prior use | File promptly; launch; watch for later filings |
| Moderate | Similar marks exist, but with differences in goods, channels, or impression; or crowded field with weak marks | Adjust the mark or narrow the goods; file; monitor; consider an infringement opinion on the closest mark |
| Elevated | A close mark for related goods, or a strong common-law user, or a likely USPTO refusal | Investigate the prior user's actual use; seek consent or coexistence; consider a different mark |
| High | An identical or near-identical mark for the same goods, a famous mark, or a known enforcer | Choose a different mark, or negotiate a purchase or license before launch |
What you receive
The scope of searching and its limits; the marks and uses found, ranked by concern; analysis of the closest conflicts under the Eleventh Circuit factors; registrability at the USPTO; foreign-market notes; trade dress notes; the overall risk level; and options.
Limits we state
No search is complete. Unregistered use can be hard to find, new filings appear daily, and foreign databases lag. The assessment says what was searched and when, so you can judge how far to rely on it.
Six steps from candidate names to a filing plan
Clearance is led by Robert Thornburg, who prepares clearance and freedom-to-operate analyses for cross-border launches, and Melissa Dangond Crews, who handles clearance and coordinates filings with foreign associates. Timing depends on scope and on foreign counsel; we give an estimate once the scope is set.
- ScopeSet markets and productsBrand candidates, goods and services, channels, and target countries.
- ScreenKnockout searchQuick federal screen to drop candidates with obvious conflicts.
- SearchFull searchFederal, state, common-law, domain, marketplace, and trade dress searching.
- AbroadForeign searchesMadrid records, national registers, and local counsel in priority markets.
- AnalyzeRisk assessmentWritten assessment with a risk level and options for each candidate.
- ProtectFiling planU.S. application, often intent-to-use, and foreign filings timed for priority.
What we need from you
- The candidate names, logos, and taglines, in order of preference
- Product or service descriptions, price points, and launch date
- Sales channels: retail, wholesale, Amazon and other marketplaces
- Target countries now and within two years, and where you manufacture
- Packaging mockups or product designs, if trade dress is in scope
- Any names you already ruled out, and why
Protect the result once cleared
- File promptly: a federal filing gives nationwide priority once registered
- Use an intent-to-use basis if the launch is months away
- Claim priority from a recent home-country filing where the treaty rules allow
- Secure domains and handles before announcing the brand
- Record with U.S. Customs after registration; see CBP Recordation
- Set up watching for new conflicting filings
What happens when a brand launches uncleared
Clearance is the inexpensive part. The costs below come later, after money has gone into the brand.
USPTO refusal
An examiner may refuse registration for likelihood of confusion with an earlier mark, after the brand is already in use.
15 U.S.C. § 1052(d)Opposition
Anyone who believes they would be harmed can oppose within 30 days after publication, with extensions available. Oppositions often come from owners a full search would have found.
15 U.S.C. § 1063(a)Injunction and rebrand
A senior user that shows likely success is entitled to a rebuttable presumption of irreparable harm for a preliminary injunction. Inventory, packaging, and goodwill may be lost in a forced rebrand.
15 U.S.C. § 1116(a)Profits and intent
Willfulness is not required for a profits award, but intent weighs heavily, and courts have treated a failure to search as evidence of improper intent. See Damages Evaluations.
Romag (2020) · Frehling (11th Cir. 1999)Five most common mistakes in clearing a brand
Most clearance problems come from searching too narrowly or too late.
Treating a USPTO search as clearance
Federal records miss unregistered users, state registrations, and marketplace brands, all of which can have priority.
§ 1057(c)Use the knockout search to narrow candidates, then run a full search on the finalists.
Clearing only the United States
A brand cleared at home can be blocked abroad by an earlier filing in a target market, including by a distributor or squatter.
Foreign rightsSearch the markets on your two-year plan, and file there before you announce.
Forgetting the translation
A Spanish or French word may be translated and compared with English marks, or refused as descriptive.
Foreign equivalentsSearch the meaning as well as the spelling.
Clearing the name but not the package
A lookalike bottle, color scheme, or product shape can draw a trade dress claim even when the word mark is clear.
Trade dressInclude packaging and product design in scope, and check design patents where shape matters.
Waiting to file after clearance
Clearance is a snapshot. Every week between the search and the filing is a week in which someone else can file first.
PriorityFile as soon as the brand is chosen; see Federal Trademark Applications.
Frequently asked questions
Is a freedom-to-operate opinion the same as a trademark search?
No. A search report lists what was found. A freedom-to-operate opinion analyzes the results, rates the risk, and recommends options. A quick knockout search is the first step, not the whole process.
Can you guarantee the name is clear?
No one can. Unregistered use is hard to find completely, new applications are filed every day, and foreign databases lag behind. The assessment states what was searched and when, so you can judge the remaining risk.
Do I need to search outside the United States?
Only for markets you plan to sell in, manufacture in, or enter soon. U.S. rights do not extend abroad, and an earlier filing in Mexico, Brazil, or the EU can block you there. Madrid members can be searched through WIPO tools; non-members such as Argentina and Peru need local searches.
My brand name is a Spanish word. Is that a problem?
It can be. Under the doctrine of foreign equivalents, a common foreign word may be translated and compared with English marks, or refused if it describes the product. We search both the original word and its translation.
Can my product's shape be protected as trade dress?
Only if it is not functional and, under Wal-Mart v. Samara (2000), only after consumers recognize it as a source identifier. Packaging can be protected sooner. A design patent may be a better early option for a new shape.
Should we file a trademark application before or after clearance?
After clearing the finalists, and promptly. A federal filing, once registered, gives nationwide priority from the filing date, and an intent-to-use application lets you file before launch.
What if clearance finds a close mark we still want to use?
Options include narrowing the goods, changing the design, investigating whether the other mark is still in use, or seeking consent or coexistence. For a deeper analysis of one specific conflict, see Infringement Opinions.
Plan your clearance
Send your candidate names, logos, or packaging mockups, a short description of the products, and the markets you plan to enter. We will propose a search scope.
- Full federal, state, and common-law searching
- Domains, social handles, and marketplaces
- Foreign searches through Madrid records and local counsel
- Trade dress review, with patent counsel where design patents matter
Prefer to talk first? Call or email, or message us on WhatsApp. Atendemos en español.
- USPTO: Retiring TESS, the new trademark search system (2023)
- 15 U.S.C. § 1057, including constructive use priority (Cornell LII)
- 15 U.S.C. § 1052(d), Refusal for likelihood of confusion (Cornell LII)
- 15 U.S.C. § 1063, Opposition (Cornell LII)
- 15 U.S.C. § 1125, including § 1125(a)(3) functionality burden (Cornell LII)
- Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000) (Cornell LII)
- WIPO: Madrid System members (PDF)
- WIPO Global Brand Database: Frequently Asked Questions
- Estonian Patent Office: Cooperation with the EUIPO (TMview)
- Lost in Translation: Supreme Court and TTAB consider the doctrine of foreign equivalents (Morgan Lewis, 2026)
- Frehling Enterprises v. International Select Group (11th Cir. 1999)
- Romag Fasteners, Inc. v. Fossil, Inc. (2020), summary (Loeb & Loeb)
General information, not legal advice for your situation. Statutes, rules, and fees as of October 2026. Last reviewed October 28, 2026.