What to do if someone trademark your name [Beginner's Guide]

Last updated : Aug 28, 2022

Can a proper name be trademarked?

If the name is a personal name you may use it a trademark, as long as a namesake does not beat you to the punch, meaning that your proposed personal name would not cause a likelihood of confusion with a similar name already in use for related goods or services.

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.

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 someone trademark your last name?

Under US trademark law, a mark which is “primarily merely a surname” cannot be protected as a trademark without proof that it has “acquired distinctiveness.” A mark is considered to be “primarily merely a surname” if its primary impact or impression on the purchasing public is that of a mere surname and not a trademark ...

Can a name be trademarked twice?

The short answer is, “it depends.” It depends on (1) Whether the other business is in the same industry; (2) Whether the other business is in the same geographical market; (3) Who was using the mark first; and (4) Who registered the trademark first.

Can you trademark a name used by someone else?

If somebody else is already using a mark that is reasonably similar to yours, it's likely that your application for trademark registration will be denied. United States trademark law requires trademarks to be entirely unique from any other than are currently in use.

How do you deal with trademark infringement?

If the infringing mark has been submitted as a trademark application to the USPTO, you can file a Notice of Opposition against the mark during its thirty-day publication period. Should the cease and desist letter and deadlines given within it be ignored by the infringer, the trademark owner can file a lawsuit.

How much is a trademark?

No matter how you file, you will pay a minimum of $250 to apply for a Federal trademark. But considering the importance of your trademark, and the potential complexities you face when filing, it's not a bad idea to use a lawyer or filing service.

What are the three types of trademarks?

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

What do trademarks protect?

A trademark typically protects brand names and logos used on goods and services. A copyright protects an original artistic or literary work. A patent protects an invention. For example, if you invent a new kind of vacuum cleaner, you would apply for a patent to protect the invention itself.

Why would someone trademark their name?

Names hold power in business. So establishing ownership of and rights to a business name is an important step for businesses that want to ensure a name remains one-of-a-kind. Registering a trademark helps protect a name or brand from intellectual property theft or misuse as a business grows.

What names can you not trademark?

• 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 you sue a company for using your last name?

Only human beings, and not corporations or other organizations, have rights of publicity and privacy interests that can be invaded by misappropriation of name or likeness. Thus, only individuals can sue for unlawful use of name or likeness, unless a human being has transferred his or her rights to an organization.

Can I start a business with the same name as another?

When you're forming a corporation or an LLC in a state, the name must be unique to your business within that state. Others can form LLCs and businesses in other states that have the same name as yours. If you want to protect your business name across all states, you will need to trademark it.

How serious is trademark infringement?

Trademark infringement violations are very serious and are often involve aspects of deceptive trade practices. Trademark infringement can result in the following legal consequences: Monetary reimbursement for losses to the plaintiff.

What are 3 things that determine trademark infringement?

Thus, "use," "in commerce," and "likelihood of confusion" are three distinct elements necessary to establish a trademark infringement claim.

Is trademark infringement a crime?

Criminal Trademark Infringement — What Is It? Criminal trademark infringement is the unauthorized and illegal use of someone else's trademark to create confusion between the original and another mark. Businesses spend a great deal of time, energy, and money on the trademarks that represent their brand.

How do I copyright 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.

How do I trademark a name for free?

You can not register a trademark for free. However, you can establish something known as a "common law trademark" for free, simply by opening for business. The benefit of relying on common law trademark rights is that it's free, and you don't need to do any specific work filling out forms, etc.

How do you know if something is trademarked?

You can search all applied-for and registered trademarks free of charge by using the U.S. Patent and Trademark Office (USPTO)'s Trademark Electronic Search System (TESS). If your mark includes a design element, you will have to search it by using a design code.

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great question from Quora if my brand is well-established but I didn't trademark the name can someone else trademark it and then file lawsuit on me even after I've been using the name for years i'm andre mink of the father of trademark factory and here's my answer to this question why oh my what a question so you have a well-established brand but you didn't trade market why not thirsty why not why the hell not why would you not protect a well-established brand something that can become your most valuable asset of your entire business why would you not protect it it's beyond me but okay let's go with your scenario you've got a well-established business and you didn't trademark the name can't someone else trademark it and then sue you for trademark infringement yes yes they can and here's why the trademarks office doesn't care about unregistered trademarks they don't care how long you've been using this mark without trademark Ian they don't care how well-established your brand is all they care about are trademarks that have been applied for or registered within their system that's the only thing they look at so unless you've got a famous brand that for some reason isn't trademarked which is almost something that never happens but we're talking about massive brands like Microsoft you know or say this type of brands big brands and if you're not one of them then doesn't apply to you because it's called famous trademarks they have special treatment but Trevor's office does not care about trademarks outside of their system so anybody else could jump in and trademark your brand and they would have a trademark registration certificate and when they do have one yes they can file a lawsuit against you and if you don't respond to that lawsuit they will win no matter how long no matter all well established you are with your business and with your brand because anybody can sue anybody for anything doesn't mean they're gonna win but what it does mean is if somebody Sue's you you have to defend it you have to defend it you have to spend money you have to toss spend time you have to spend your emotions you have to spend your energy fighting this lawsuit because if you don't a default judgment is gonna be entered against you and you're gonna lose even if you're right and they're wrong so but let's say you've got the budget to defend the case then yes probably you'll win if you can prove that you were there with us brand in the same industry long before they trademark theirs if you are in the country that respects unregistered trademarks as common law trademarks for example you ask for Canada then you would in theory be able to win but it's gonna cost you hundreds of times more then it would have cost you to just go ahead and trademark the damn thing a good example that I have is so there was a case in Canada called woodpecker flooring so there was this flooring company in Richmond it's near Vancouver and they were in business for 20 years well established never bothered to trade on their name so a competitor across the street we have a whole street there in Richmond where as near idea we're all of those you know home declarations and home construction companies are right they sell all sorts of stuff and there's a lot of them across the street so there's their competitor across the street goes ahead and trademarks woodpecker flooring and trademarks office doesn't care about the twenty year old company because they haven't bothered to trade wonder the name so they register that trademark and then the new company finds nothing better to do than to file a lawsuit against the old company I'd say Dada Dada Dada we all this trademark you should stop using this brand because it's now ours and the old company was having none of it they defended the case they won the new company appealed so the old company won that as well so on by the book by the book the old company is okay right they they got they they won the Webster they they want lawsuit here's the problem with that well actually two problems problem number one the old company had to spend a lot of money well into six figures to defend the case to not be found infringing the rights of the new company and second even more important the new company still owns that mark they just can't enforce it against the company it was there first but the old company can't expand anymore geographically so they can't open woodpecker flooring let's say you know in Theriot or they can't or Alberta or any other province in Canada because trademarks are federal so the only exception to the enforceability of that new trademark is Vancouver and Richmond right this close area next to that store because this is where the old company still has what's called common law rights to the name but that's it that's it if they have not become known under that name in a certain part of the country when somebody else trademarks the same brand you're out of luck now they own it so if your brand is well established but you didn't trademark the name that's the big mistake that's really where the question should stop and the real question is why haven't you because if you're if you're hoping that nobody's gonna steal your brand if you're hoping that nobody's going to try to hijack it and then maybe get some money from you you're sorely mistaken the way I always say is before your business becomes truly successful somebody will trademark your brand it could be you or it could be somebody else why wouldn't it be you why would you create a massive problem for your business the problem that can be easily and inexpensively solved preemptively today so don't wait trademark your brand and don't worry about somebody else stealing it from you it's not really that expensive in fact for a business that's a real business it's not a hobby it's not expensive at all now I hope this answers your question make sure you like this video comment below and subscribe right we are working on these videos and the only way for us to know if you like them is by seeing your engagement just comments likes and subscribes so if you haven't yet subscribe now get notified whenever the next video goes live and I'll take it from there and I'll see you in the next video

Thanks for your comment Ezra Stvil, have a nice day.
- Gabriel Delfierro, Staff Member

if you find out that someone else is using your trademark or something very similar to your trademark and they're in a similar line of business or work then there are several steps that you want to take and really the first most important step is to stop to slow down don't do anything on your own don't reach out to the other company talk to a trademark attorney and the reason is you want to evaluate whether this is a legitimate claim whether they really are using your mark in a manner that would confuse consumers whether they are a competitor in either your industry or a related industry of products and services and you want to make sure that you have the dominant rights and so it doesn't backfire what I mean is if they were somehow using it first and you just didn't know about it contacting them could actually backfire if you contact XYZ and say we think that you're copying our trademark and we demand you stop and they write back and they say well actually we agree that these are confusing but here's proof that we were using it first now you've actually just created a problem for yourself instead of solved the problem so you want to make sure that you get the foundation understood in terms of what the facts are before you take action and if you haven't registered your mark yet you want to most likely at least start the application process before you reach out to and contact the other business because if they file before you at the USPTO that will just cause even more problems and complicate and make the situation even more expensive if this situation is international it may change the perspective here and the options and him you may not even have any rights depending on whether you've done business internationally so that's another factor that you want to consider before taking any action

Thanks abestiras0 your participation is very much appreciated
- Gabriel Delfierro

About the author

Gabriel Delfierro

I've studied geometry and topology at University of San Diego in San Diego and I am an expert in relativity. I usually feel cold. My previous job was service station attendants I held this position for 13 years, I love talking about lacrosse and sailing. Huge fan of Ivan Moody I practice yoga and collect breweriana.