Why available isn't clear: trademarks 101 for indie devs

Every name checker, including this one, tells you whether a name is in use. None of them tell you whether you're allowed to use it. That's a trademark question, and it's worth an hour of your time before you order stickers.

What a trademark is

A trademark is the right to use a name, logo or phrase to identify goods or services in a particular category, so that customers aren't confused about who they're buying from. It's not ownership of a word. Apple the computer company and Apple the record label coexisted for decades because they were in different categories, until iTunes put them in the same one.

Registered vs common-law

In the US, using a name in commerce gives you some rights automatically. Registering it with the USPTO gives you much stronger ones: a public record, nationwide priority, and the ability to stop someone in another state. Most indie apps start on common-law rights and register later if the product works. That's fine, as long as you've checked that nobody else already holds the mark.

Classes

Trademarks are filed in one or more of 45 international classes. The ones that matter for software:

• Class 9: downloadable software, including mobile apps.
• Class 42: software as a service, hosted platforms, design and development services.
• Class 35: advertising and business services, if your app is a marketplace.

A mark registered in class 25 (clothing) doesn't block your class 9 app. A mark in class 9 for a completely different kind of software might, if a judge thinks customers could be confused. "Likelihood of confusion" is the standard, and it's a judgment call.

How to do a basic search

1. Go to the USPTO's trademark search at tmsearch.uspto.gov.
2. Search your name as a plain word. Then search obvious variations: with and without spaces, phonetic spellings, the singular and plural.
3. For each hit, check the class and the goods description. A live mark in class 9 or 42 that covers software similar to yours is a red flag.
4. Look at the status. "Live" marks matter. "Dead" marks (abandoned or cancelled) mostly don't, though a recently abandoned one might get refiled.
5. Repeat at the EUIPO and WIPO databases if you'll sell outside the US. NameHQ's results page links to all three prefilled with your name.

What the search doesn't catch

Common-law marks that were never registered. Marks that are similar in sound or meaning rather than spelling. Pending applications filed in the last few weeks. A clean search reduces risk; it doesn't eliminate it.

When to pay a lawyer

If you've raised money, if you're about to spend real money on marketing, or if the search turned up anything ambiguous in classes 9 or 42. A clearance opinion from a trademark attorney costs a few hundred dollars and takes a week. A rebrand after launch costs everything you've built on the name.

The checklist

• Search the USPTO for the name and its variants.
• Check classes 9, 42 and 35 specifically.
• Note anything live and similar.
• Search EUIPO and WIPO for other markets.
• Get an opinion if anything is unclear.
• Register in class 9 or 42 once the app has traction.