People ask a trademark attorney this question all the time: Can you get a trademark if someone else is using your name? The answer is maybe, just maybe. It depends upon a few things. Let’s talk about them.
First, if someone else is already using your name, but they don’t have a registered trademark, then you just might be in luck. So, let’s say that you’ve been operating, I don’t know, a Sam Sandwich shop. And there’s another Sam Sandwich shop in some other part of the country, or the world that’s been using their name longer than you. If they didn’t file for trademark protection first, you can still race them to the trademark office, file your application, and possibly get your trademark rights first. So, just because someone else is already using your name, even if it’s in connection with the same business as you, you could still obtain trademark protection.
But, what if someone has already filed for trademark protection for their name before you, and has trademark rights? Can you still get trademark protection? The answer is still maybe (I’m chock-full of good news today). In a nutshell, two companies with the same name can both have trademark rights, so long as they have different types of goods or services. This might surprise people because you may think that once you have a trademark, you get a monopoly or exclusive rights to use your name, but that’s not the case. You only get exclusive rights within the same classes or categories or types of goods and services that you offer. So, think about this:
Delta, the Airline, and Delta, the Water Faucet company, both are called Delta. Both have trademarks and they’re allowed to do so because consumers aren’t really confused. They don’t think that the same company that flies planes also helps you get water from your sink. So if you have a name that you want to get protected, but you’re worried because you see somebody else is out there online using it, or you know that they have a registered trademark, you’re not dead in the water.
By contacting a trademark attorney (like, oh I don’t know… us), they can run what’s called a trademark clearance search and be able to determine (1) what is your likelihood of success of getting a trademark based upon what other trademarks have been filed before you and (2) what roadblocks might exist for you obtaining trademark protection. And, by having that information, you and your trademark attorney can come up with a plan of how to protect your business name or logo, and get all those wonderful and exclusive rights that come with trademark protection.
If you’re looking to get a trademark, don’t hesitate to contact us today using the contact form below.
But you might be thinking, “Ethan, what are these wonderful benefits that come with getting a trademark?” To answer that question I invite you to visit trademarktuesdays.com, where you can download our free guide called How to Protect and Grow Your Business or Brand with Trademarks.
It’s going to provide you with answers to all common questions about trademarks such as, “what is the trademark process?’, “What are the benefits?” or “What will happen if someone else uses my name?” So visit trademarktuesdays.com, download your free guide and get all those juicy answers to those tough trademark questions that you’ve been thinking about.
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