After Romag: the new reality of trademark law, and why clearance searches are the smartest money you’ll spend

When the Supreme Court decided Romag Fasteners, Inc. v. Fossil, Inc. in 2020, most business owners didn’t take much notice. Believe it or not, it wasn’t exactly front-page news that year. There was a lot going on then, but I think it probably should’ve been, because that ruling quietly raised the stakes for every company that launches a product, brand, or logo without doing proper trademark clearance first.

In Romag, the Court said you don’t need to have willfully, intentionally infringed on a trademark for its owner to recover the infringer’s profits. This means that, even if you didn’t mean to step on someone’s mark, a court can still take your profits away for doing so. Romag Fasteners, Inc. v. Fossil, Inc., 140 S. Ct. 1492 (2020).

That decision flipped the script. Before Romag, ignorance was bliss and “we didn’t know” as a defense could conceivably keep damages down. Now? Ignorance just looks expensive.

What that means for your business

Post-Romag, there’s no safety zone for “accidental” infringement. You can be the most well-intentioned entrepreneur in the world, but if your new brand name overlaps with someone else’s rights, you’re still on the hook for lost profits.

And because the court can consider your state of mind, skipping a trademark search simply looks bad these days. Judges expect you to have done your homework before you filed, printed, or posted anything.

In short: trademark clearance isn’t just a legal checkbox anymore. It’s risk management.

Why clearance searches are non-negotiable

Think of a trademark search like an insurance policy for your brand’s launch. It can be the difference between a smooth rollout and a five-figure rebrand six months later.

Clearance work answers the questions that matter most before you hit “go”:

• Can we use this mark?
• Can we protect it?
• Can we enforce it if someone else copies us?

And, just as important, it can answer an even more important question: should we?

A smart search strategy gives you leverage in negotiations, confidence in your marketing spend, and proof of good faith, just in case anyone ever comes after you. Without it, you’re just gambling blind.

The four flavors of trademark searches (and when to use them)

1. Knockout (preliminary) search

This is the quick scan, your first filter. A trademark attorney looks for obvious conflicts in the USPTO database and online. Perfect for early naming stages when you’ve got a shortlist of contenders.

Use it when: you’re brainstorming names and want to ditch the non-starters fast.

Goal: catch the easy “no” before investing in design, packaging, and ad buys.

2. Full (comprehensive) search

This is the heavy-duty scour brush. Your attorneys dive into federal, state, and common-law sources (which just means unregistered brands that still have rights simply by using the name). These reports are usually handled through professional databases, return many pages of results, and are reviewed by a trademark attorney who can tell you what’s noise and what’s a real threat.

Use it when: you’re ready to file, launch, or invest serious money behind a brand.

Goal: confirm you’re clear to operate and build defensibility into your strategy.

3. Common-law search

Not everything that matters shows up in the federal register. In the U.S., trademark rights come from use, not just registration. A mom-and-pop bakery or a local agency might own rights just by selling under the name first.

Use it when: your product or service operates in the U.S. (so, basically always).

Goal: find unregistered players who could still block you.

4. Global search

If you intend to sell your product or services in other countries, do not assume your U.S. rights travel with you. Many countries are first-to-file, which simply means that whoever files first wins.

Use it when: you manufacture abroad, sell online internationally, or plan to expand globally.

Goal: prevent your mark from being hijacked by someone else before you even get there.

The payoff: a paper trail and peace of mind

A proper clearance search doesn’t just keep you out of trouble. It builds a paper trail of diligence. Nowadays, that matters. In court, good-faith effort can mean the difference between a reasonable settlement and a catastrophic amount of damages.

Consider adidas v. Payless: inadequate clearance advice helped sink Payless with over $65 million in damages after the court found its conduct, shall we say, anything but innocent. Adidas-Am., Inc. v. Payless ShoeSource, Inc., No. 3:01-cv-01655-KI (D. Or. 2008).

To state the obvious: you can buy a whole hell of a lot of trademark searches for $65 million.

The bottom line

You wouldn’t launch a product without a business plan. You wouldn’t build a house without a blueprint. Don’t launch a brand without having a proper trademark search done first.

That’s always been the case. Although Romag didn’t change that, it sure made ignoring it a lot more expensive.

If your company is developing a new brand, product line, or logo, this is your moment to do it right. We handle knockout, comprehensive, and global trademark searches designed to fit your risk level and budget. We’ll help you figure out not just whether you can use a mark, but whether you should.

This post is for informational purposes only and isn’t legal advice. If you’re considering a new brand or product name, talk to a trademark attorney who can evaluate your specific situation.