Startups and small businesses find themselves in this situation all the time. They are thinking about using a business or brand name, but a quick Google search reveals someone else is using the name first. Is it safe for them to use the name and get trademark rights? The short answer is yes, but there are some legal exceptions. Allow our trademark attorney to explain.
With millions of businesses around the world, it’s understandable that someone else is already using the business name you want. But this doesn’t mean that you can’t use the name and even get trademark rights.
If someone is using a business name but has not trademarked it, there is nothing stopping you from filing a trademark application first. The trademark office will then evaluate your application to see if it qualifies for trademark protection. Best of all, they will not consider the other business who is using the same name if they haven’t filed for trademark protection. This means you can get a trademark even if someone else is using your business name.
This doesn’t mean the person using your name first isn’t without legal rights. If the business who used your name first decides to file for trademark protection later, and learns about your application, they could take legal steps to cancel your trademark. They could argue that their business used the name first and therefore should be the only one to get legal protection for that name.
This does not happen often, but it’s important to speak with a trademark lawyer so they can advise you on whether this situation is possible and how to avoid it.
Many startups and small businesses are surprised to learn that multiple businesses can trademark the same name. So long as the businesses offer different goods or services, they can both qualify for trademark protection. This is because consumers are not likely to be confused that the brands come from the same company.
For example, Delta Airlines and Delta Faucets both own a trademark for Delta. The reason they can trademark the same name is that consumers do not likely believe that the airline company also makes faucets. Because the trademark office understands that there is no likelihood of confusion between the brands, both can get a trademark.
If you want to trademark a business name but learned that someone else already uses it, you are not out of luck. An experienced trademark attorney can evaluate whether your name is safe to use or whether you can get a trademark. We invite you to schedule a complimentary telephone consultation to learn more.
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How do you Trademark a name so no one can use it?
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