A Freedom to Operate (FTO) search is a critical, yet often overlooked, step for startups. While bringing a new product or brand to market is exciting, it also comes with risk. Without proper checks, you could unknowingly infringe on someone else’s intellectual property (IP), resulting in legal threats, a costly rebrand or worse. This guide explains what an FTO search is, why it matters, how it’s done, and the real-world consequences of skipping it.
What is a Freedom to Operate (FTO) Search?
An FTO search (also called a clearance or infringement search) investigates whether your product, service, or brand name might violate existing IP rights such as patents, trademarks, or copyrights.
Think of it as a due diligence scan before launch. It identifies potential IP conflicts early, before they become expensive legal problems.
Why FTO Searches Matter
- Avoid litigation: Infringement lawsuits can destroy a startup.
- Protect your investment: Rebranding or halting sales after launch wastes time and money.
- Identify licensing options: If a conflict is found, early discovery may lead to a licensing deal.
- Build stronger IP: Understanding existing rights helps you design around them or file smarter patents and trademarks.
Australian Trademark Example
In 2021, an Australian health tech startup launched the app “MindEase”. But a UK trademark already existed under a similar name. Their international expansion efforts failed, and they subsequently rebranded, incurring costs of over $120,000 (Source: IP Australia).
What Does an FTO Search Involve?
- Define Scope
What are you launching — a product, a name, a logo, or software? - Identify Markets
Are you operating only in New Zealand, or expanding to Australia, the US, or Europe? - Search IP Databases
- Patents: IPONZ, IP Australia, WIPO Patentscope, Espacenet
- Trademarks: IPONZ, IP Australia, TMView
- Copyrights: Image/music libraries, domain registries, open source licensing checks
- Interpret Results
Legal advice is usually needed to assess infringement risk or determine whether a patent has expired or is enforceable. - Document and Decide
Record your findings. Then decide: proceed, modify, license, or stop.
New Zealand Patent Example
A New Zealand agritech startup conducted an FTO search before launching a drone crop-monitoring system. A similar US patent existed, but it had expired. Thanks to the search, they launched confidently with global reach.
Real Risks of Skipping an FTO Search
Case Study: “GreenFizz” Kombucha
A Kiwi startup entered the Australian market, only to face a trademark dispute within months due to an existing soft drink brand – the result: forced rebranding and lost momentum (Source: IP Australia).
Case Study: “GlowWrap” Wearable Tech
A New Zealand company launched a wearable with LED features. They skipped the US patent check. Weeks later, they received a cease-and-desist over a pending US patent. The product was pulled, legal fees mounted, and investors withdrew.
Make It a Standard Part of Your Launch Plan
An FTO search is not just legal hygiene – it’s a smart business strategy. Whether you’re naming a product, releasing new tech, or entering a foreign market, it’s your early warning system.
Startups that check first move forward with clarity, confidence, and fewer surprises.
Sources
- IPONZ – NZ Intellectual Property Office
- IP Australia – Trade Marks Hearings
- Espacenet – European Patent Office
- WIPO Patentscope
- TMView – Trademark Search
Need help with your Freedom to Operate search?
