Can you trademark a name someone else is using [Best Info]

Last updated : Sept 14, 2022

What happens when a trademark is used by someone else?

If you use someone's trademark without first obtaining express consent or without a legal right to do so pursuant to the fair use doctrine, the trademark owner can sue you for trademark infringement. Trademark infringement damages may include monetary compensation based on loss of profits and economic harm.

Can you use someones name as a brand?

You should not use the name if someone in your field or a similar one is using it. You may be able to use the name if someone in an unrelated field is using it, but you should try not to use similar logos, styles, or colors.

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 do you do if someone uses your trademark name?

The first step is to contact an attorney specializing in trademark law. He or she will help you through the next steps: Trademark issues typically begin by sending a cease-and-desist letter to the infringing business and demanding that they stop using your mark.

Can I trademark a phrase already in use?

To trademark a phrase locally, you must already be using the phrase publicly. You can apply for a nationwide trademark with the USPTO. With the USPTO you can apply with the "intent to use." Phrases eligible for trademark registration include catch phrases, taglines, slogans, and mottos.

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 you trademark something you didn't create?

Updated November 12, 2020: 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 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.

What names Cannot be trademarked?

• Proper names or likenesses without consent from the person.
• Generic terms, phrases, or the like.
• Government symbols or insignia.
• Vulgar or disparaging words or phrases.
• The likeness of a U.S. President, former or current.
• Immoral, deceptive, or scandalous words or symbols.
• Sounds or short motifs.

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.

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 long do trademark last What can I do if somebody is using my trademark?

Section 135 of the Act provides relief in the civil suit of trademark infringement. The court can grant a permanent injunction preventing/restraining the person from using the registered trademark. The court can also award for paying the damages caused by the unauthorised usage of trademarks.

What constitutes a trademark violation?

To prevail on a claim of trademark infringement, a plaintiff must establish that it has a valid mark entitled to protection; and that the defendant used the same or a similar mark in commerce in connection with the sale or advertising of goods or services without the plaintiff's consent.

What are the 3 types of trademarks?

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

Can someone steal my business name by registering it as a trademark?

Anyone can snatch up a business name and use it for their own business. There's no one uniform database or agency that ensures only one business is using a specific business name. That's how we often see very similar company names that aren't related by franchise or corporate ownership from one state to another.

Can 2 businesses have the same name in different states?

Two Businesses Can Have the Same Name in Different States Because naming rules are limited to one state, businesses formed in different states can have identical names.

What is not protected by trademark?

Generic terms are not protected by trademark because they refer to a general class of products rather than indicating a unique source.

How long is a trademark protected?

The term of trademark registration can vary, but is usually ten years. It can be renewed indefinitely on payment of additional fees. Trademark rights are private rights and protection is enforced through court orders. What kinds of trademark can be registered?

What qualifies for a trademark?

Two basic requirements must be met for a mark to be eligible for trademark protection: it must be in use in commerce and it must be distinctive. The first requirement, that a mark be used in commerce, arises because trademark law is constitutionally grounded in the congressional power to regulate interstate commerce.

What if my company name is similar to another?

If you choose a name that is too similar to the name of a competing business, that business may accuse you of infringing on its trademark rights. When that happens, you may be forced to change the name of your business. You may even be ordered to pay monetary damages.

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Write a comment

can you get a trademark if someone else is already 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 Sam sandwich shop and is 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 alright I'm chock full of good news today so 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 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 yet by contacting a trademark attorney they can run what's called a trademark clearance search and be able to determine one what is your likelihood of success of getting a trademark based upon what other trademarks have been filed before you or 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 but you might be thinking Ethan what are these wonderful benefits that come with getting a trademark I'd love to tell you about them but you've already been watching this video for like two and a half minutes so instead I invite you to visit trademark Tuesday's com where you can download our free guide called how to protect and grow your business or brand with trademarks and 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 trademark Tuesdays dot-com download your free guide and get all those juicy answers to those tough trademark questions that you've been thinking about there's actually coffee in this cup okay not much less but you were thinking I was faking it uh-huh it's coffee it's cold but there's coffee

Thanks for your comment Allen Beel, have a nice day.
- Noma Westley, Staff Member

hi there deputies of the business stylist and today's question is about brand names and trade markings so I had somebody write to me and asked me I have a name that I would like to trademark and I've done some research and there's people out there using it but no one has trademarked it yet is it okay if I go ahead and try to trademark that name my answer is a great big fat no it's not unless they're all in completely different industries and there's going to be no confusion for your prospective clients if they're out there searching and they find you and five other people with the same name but if you're in the coaching business and all the other ones are in the furniture business maybe it's not an issue but if they're all in similar industry I don't care if it's trademarked or not if they're out there using it there's gonna be confusion and your marketing could potentially be sending people to their websites and you could be sending your potential clients to someone else's business but probably more important than that it's really important to understand that I know in the US and I'm not sure about in other countries but even if someone hasn't legally trademarked a name if they've been using it and they can show proof that they've been using it for many years they still have a defense if they see you start using the name and they ask you to stop if they can show proof that they've been using it for five years you may still be asked not to use that name and I think maybe most important is goes back to the golden rule do unto others as you wish they would do unto you think about how you would feel if you spent a lot of time and energy coming up with a brand name that you loved and you were out there marketing using that brand name and you didn't trade market for one reason or another maybe you didn't know you should maybe you just didn't have the budget there are a variety of reasons people don't trademark names and then all of a sudden somebody else who does pretty much the same thing as you maybe a year two three five years down the road starts using the same name how would that feel you know you're gonna feel like wait a minute you know this is my name and now someone else is trying to use it and then you got to go after them and ask them to stop it's just not a nice thing to do if it's already taken trademarked or not don't use it come up with your own the whole idea with coming up with a unique brand and brand name is that it's unique that means no one else is using it I know it makes it challenging because it seems like all the good names are taken but you know what spend the time and energy do the research do whatever it takes to come up with something that no one else is using that you can own it's the right thing to do it's gonna help you avoid any legal concerns down the road even if those other people haven't gone through the legal process you could still find yourself in trouble and if nothing else you could find yourself being the recipient of some nasty emails of people that just aren't very happy with the fact that you're stepping on their business toes so you know let's all take the high road let's all respect other business owners you know we're all just out there trying to do the best we can to make a living and serve our clients so let's try to respect that and not go and use a name that's already being used and come up with our own you know it's more fun to be the one and only and it's more effective as well if you have a question you'd like me to answer send it to debbie at the viz stylist comm and maybe your questions will be the next one I answer take care

Thanks Pearline your participation is very much appreciated
- Noma Westley

About the author

Noma Westley

I've studied solid-state chemistry at National University of Health Sciences in Lombard and I am an expert in remote sensing. I usually feel depressed. My previous job was foreign service peacekeeping specialist I held this position for 10 years, I love talking about record collecting and yoyo. Huge fan of Jimmy Buffet I practice short track and collect handbags.