Can i trademark something that already exists [Glossary]

Last updated : Sept 1, 2022

Can you use a brand name that already exists?

DBA names are also referred to as assumed names, trade names and fictitious names. You can't use an existing DBA name or one registered with the U.S. Patent and Trademark Office. Names that are similar to existing names are not allowed.

What Cannot be used as a trademark?

However, you can't trademark: Proper names or likenesses without consent from the person. Generic terms, phrases, or the like. Government symbols or insignia.

Can something be both copyrighted and trademarked?

Both are legal protections for intellectual property, but not of the same kind. Intellectual property that can be trademarked cannot be copyrighted. Intellectual property that can be copyrighted cannot be trademarked. For example, a company can trademark its name and logo and copyright its videos and books.

Can 2 businesses have the same name?

Can Two Companies Have the Same Name? Yes, however, certain requirements must be met in order for it to not constitutes trademark infringement and to determine which party is the rightful owner of the name.

Can the same name be trademarked twice?

However, if the two products are not related to one another and not likely to cause any confusion, then trademark law will not prevent the two companies from using the same name. Put differently, if the same name is registered in different trademark classes, this does not give rise to an infringement claim.

Why would a trademark get denied?

A mark will be refused as deceptively misdescriptive if (1) the mark misdescribes an ingredient, quality, characteristic, function, feature, purpose or use of the specified goods or services; and (2) the misrepresentation conveyed by the mark is plausible.

What are the 3 types of trademarks?

What you'll learn: Arbitrary and Fanciful Trademarks. Suggestive Trademarks. Descriptive Trademarks.

What makes a trademark invalid?

Trademark Invalidation If the registration is less than five years old, the party challenging the trademark rights can rely on any ground that could have prevented registration initially. The likelihood of confusion and descriptiveness is the most common grounds asserted to invalidate trademark rights.

Is it better to trademark or copyright a name?

A trademark can protect your name and logo in case someone else wants to use them for their own purposes. Also, you cannot really copyright a name, since copyright protects artistic works. This is exactly why you need to have a trademark that protects your company's intellectual property, such as your logo.

Which is better copyright or trademark?

Copyright protects original work, whereas a trademark protects items that distinguish or identify a particular business from another. Copyright is generated automatically upon the creation of original work, whereas a trademark is established through common use of a mark in the course of business.

How long does a trademark last?

A federal trademark lasts 10 years from the date of registration, with 10-year renewal terms. Between the fifth and sixth year after the registration date, the registrant must file an affidavit to state that the mark is still in use.

Can you trademark a name that is already in use but not trademarked?

If you're wondering, "can you trademark something that already exists," the simple answer is "no." Generally speaking, if somebody has used a trademark before you, you can't register the trademark for yourself.

Can someone sue you for having a similar business name?

A trademark lawsuit will require you to prove three things: You have registered a trademark or service mark in the name. Someone else is using the same or similar name to sell similar goods and services to yours. The infringer's use of the name is confusing customers or diluting the power of your trademark.

Can I trademark someone else's business name?

It is not illegal for the U.S. Patent and Trademark Office to register a person's name as part of a trademark, but it only grants this level of protection to names that are widely used in commerce or are unique. Trademarks are granted to protect established brand names from inferior competition.

What happens if someone uses my trademark?

If the person or entity receives your letter and continues to use your trademark, it's time to file a lawsuit. The suit will get filed in federal court if it spans more than one state. If the infringement is local, it may get filed in a state court.

What if your company name is already trademarked?

Infringing on the Trademark Name If the other business has a trademark, the current owner can infringe upon this legal protection by using the same company name. Then, he or she will need to change the name to avoid a possibly detrimental lawsuit based on the trademark already in use.

How do I know if a name is already trademarked?

Before you apply, you should search the USPTO's trademark database (Trademark Electronic Search System, or TESS) to see if any trademark has already been registered or applied for that is: Similar to your trademark. Used on related products or for related services, and.

How often do trademarks get rejected?

by Brette Sember, J.D. If you've filed a trademark application, you're probably excited to get started using your mark. But not so fast — according to the United States Patent and Trademark Office (USPTO), about 18% of applications are rejected.

Is it difficult to trademark a name?

Registering a trademark for a company name is pretty straightforward. Many businesses can file an application online in less than 90 minutes, without a lawyer's help. The simplest way to register is on the U.S. Patent and Trademark Office's Web site, www.uspto.gov.

Does a trademark have to be exact?

To find relatedness between goods and/or services, the goods and/or services do not have to be identical. It is sufficient that they are related in such a manner that consumers are likely to assume (mistakenly) that they come from a common source.

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hello i'm tami shambati houston-based attorney and host of ask timmy live and today's question of the day is can i trademark a name that someone else is already using now this is a question i get asked all the time and it's a great question so here's the answer it depends with a strong leaning towards the side of no but it depends and let me unpack that a little bit more why am i saying it depends well let's say you want to use a name that someone else is using but they are not in the same lane as you perfect example we have delta airlines and we have delta faucets delta airlines is operating all the way over here delta faucets all the way over here is it is it likely that someone is going to mix up the two companies do you think that someone who is going who is looking for airlines right booking a flight is going to accidentally try and book a flight with the faucet company no there's not a likelihood of confusion there right and so in such instances where the name that you're trying to use is a name that's being used but in a different industry with different goods and services then yeah maybe if however you're trying to copy the name or do something similar use the name of product or service that somebody is already using even if they haven't already registered it but you're in that same lane you know you're wrong we don't have to talk about like there's a legal side to this but you already know what you're trying to do right um and so we're going to say that that's a no and the law is going to agree and say that's a no because they do not want a likelihood of confusion if you're trying to operate in this area where somebody else has already established their roots why are you trying to do that it's not nice um and the law reflects that they want to look at first on use so when they're looking at who has stronger rights to a name surprisingly it is not the first person to register the name it's the first person to use the name and registration service has proof of your use it's not the only form of proof that can be proffered or provided but it is strong proof and it also provides notice to the rest of the world that hey this is my lane i own this area okay so don't come and play over here right so that is what essentially happens and that's where you get that strong no if it's a similar good similar service then you don't want to do that but if you're in two different areas so we already gave the example of the delta there's also this golfing company called my girl so they're talking about the golf clubs and so they're called my girl golf clubs i don't know why but they've registered a mark when it comes to golf clubs there's another mark when it comes to guess what dolls and clothing and apparel for the dolls that's called my girl they can operate and coexist because they're operating in two different markets they're operating in two different channels they're operating with two different products and services they're not trying to confuse each other they're not trying to steal each other's business they're doing their own thing right and so that's what i want to encourage you to do as well if you see that someone has something that is similar to the name that you want to use or exactly the same it's probably better that you go back to the drawing board and even as a business owner if there is something that is so similar to yours like a lot of times i have people who come to me and they say that oh it's different from mine because mine i have two e's and they have one e or you know let's say they're saying um miss miss stacy's and they're like oh miss stacy with a y and this one is miss stacy with an i well do you want your customers to have to think that hard has to which which company they're trying to deal with from a marketing perspective from a branding perspective that's not what you want because that could cause them to accidentally give the other miss stacey with the y the money that they intended to give you miss stacy with an eye the example i gave is very interesting but essentially that's what you should keep in mind um if you're operating in two different product areas then it might be okay but i also want to caution you when you're deciding what your brand is going to be and the marks you're going to use think about not only what you're currently selling the goods and services that you're using now but the areas where you might as eventually expand into because that can cause you trouble in the future if you expand into an area where there's a mark that already is in use perfect example is apple when apple started there was apple computers that they created but there was also apple music now they thought at the time that yo we're in two different lanes i'm not crossing into your lane we're good right music computers or music computers well what happened over time apple decided the great idea of itunes and and ipods and all of this music related material goods and services that they started to provide and guess what apple music that was saying hey we don't want you to play in our playground when they started was like now you really are making a mistake and guess what apple music got paid a lovely sum of money by apple computers because they were in the right and apple computers was in the wrong so you want to keep that in mind when you're thinking about your name it's like okay right now i'm just selling this but i think i'm gonna sell this this this and this as well let me make sure that those areas i have some type of i'm coming up with some type of strategy to make sure that nobody else is using it and that area remains um protected for me that was a lot i hope it was helpful if it was go ahead and like this video share this video subscribe to this channel and then follow me on social media you can find me at tos legal you can find me on instagram twitter facebook and you can visit my website wwe and let me know if you have any other questions drop a comment below love hearing from you and can't wait to talk to you soon have a great great great week bye bye

Thanks for your comment Gregg Manues, have a nice day.
- Palmer Lefton, Staff Member

when i'm talking with clients about new brand names which of course happens very frequently they often are under the misbelief that they need to come up with a name that is completely original and unique to do so would actually be extremely difficult a trademark or a new brand name does not have to be entirely unique it just needs to be unique in your industry and of course like everything in trademarks there is quite a bit of nuance and gray area to that and i want to spend just a few moments talking about that today you see trademarks can co-exist when they're used for different products and services some well-known examples include delta airlines and delta faucets or peter pan bus lines and peter pan peanut butter and there are many others that you've likely encountered or seen because faucets and airlines have very little if anything to do with each other and no consumer would be likely to believe that one is affiliated with or sponsors the other however if someone tried to launch a bus line or a car sharing service and use the delta name that might be a problem with delta airlines because they're both in the field of transportation similarly if someone was in the tile business or the bathroom repair business and use delta as their brand name that might cause a conflict with delta faucets because those industries are related or at least more related so there's no black and white easy boundary that can be drawn around a trademark and it depends where this line is drawn on how strong a particular trademark is and for that one would want to refer to the sliding scale of trademark protection where an arbitrary or made-up term has a much broader scope of protection in general than a suggestive term which has a broader protection than a descriptive term and finally a very descriptive term has very little protection and a generic term of course has no protection so these are the considerations that trademark attorneys are advising and discussing with clients all the time when they're proposing new names and doing searches to determine whether or not a name is clear it is very likely that you will find someone else using almost any name or a variation of almost any name that you can come up with but the key is whether or not it's going to create a likelihood of confusion given the factors of the goods and services and the channels of trade and how they're sold and how they're marketed and the other important factors under trademark law so trademarks can coexist in different industries but there is a lot of gray area every situation is unique and it is very valuable to consult an attorney when trying to figure out whether two in particular can co-exist

Thanks nomkhontot your participation is very much appreciated
- Palmer Lefton

About the author

Palmer Lefton

I've studied archaeogenetics at New Jersey Institute of Technology in Newark and I am an expert in palynology. I usually feel blissful. My previous job was stress analyst engineer I held this position for 17 years, I love talking about fossicking and water skiing. Huge fan of Mandy Moore I practice shuffleboard and collect stamps.