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[Asaha]

I'm going to open a physicians office and was going to call my office  "Physicians Spine and Sports Institute" (hypothetical name), or possibly replace "Physicians with the city the clinic is located in.  I recently found that about 40 miles from  my clinic is located a practice named "Spine and Sports Institute".  Does this practice have grounds to sue me over the name?  I've learned that they have not trademarked their name,does that matter?  

I figure that "Sports and Spine Institute" are generic terms.....look and see how many "Primary Care" names groups you can find in any given city,(Primary Care Specialists, Primary Care Consultants, Ohio Primary Care, Cleveland Primary Care).

I don't want to risk getting sued and spending the money and time towards it.  Would it help if I trademarked the name?  Thanks in advance.

Asaha

[JSonnabend]

To the extent that the other party is using the name as a mark and it is actually functioning as a mark (that is, consumers understand it to identify a particular provider of services), then it is a trademark.  There is no such thing as "trademarking" a mark, as you suggest.

If the purported mark is merely descriptive and hasn't acquired the source identifying function just described, then you should be free to use it, but you won't be able to protect it as your mark any more than the senior user would.

It would not help if you "trademarked" the name, as no such process exists.  You can seek registration of the mark, but if it is merely descriptive, you will be denied registration in any meaningful way.

- Jeff