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Author Topic: TM name used elsewhere but available  (Read 527 times)


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TM name used elsewhere but available
« on: 03-09-18 at 02:48 pm »

 Would there be any issues with filing for an available TM product name(USPTO search) when a similar name is used by someone else though they have not trademarked it? Is it worth the effort applying at all or should we use another name.

Robert T Nicholson

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Re: TM name used elsewhere but available
« Reply #1 on: 03-09-18 at 03:09 pm »

Trademarks right are acquired through use i commerce.  There are additional rights and protections secured through registration, but registering is not required.

If someone is using a trademark, and you use the same name for a similar product or service, you would be violating their trademark rights.

This post is provided for information purposes only, and does not constitute legal advice.

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Re: TM name used elsewhere but available
« Reply #2 on: 03-09-18 at 04:27 pm »

However, unregistered trademarks only have protection within their geographic area(s) of use.  That's why Burger King of Mattoon, IL was prevented from blocking Burger King the international chain from using the name (even within most of Illinois), even though the little local restaurant had existed for a while before someone thought of using the name for a nationwide franchise.

It really comes down to specifics.  If you're going to be doing something that has national or international scope, then pick another trademark.  If it's "Andy's Auto Body" and you're doing dent removal within fifty miles of your home, then you just need to worry about other unregistered dent repair shops within a reasonable distance.

If you're going to use a mark that you know may infringe someone else's unregistered mark, then talk with a trademark attorney in your state.  It will be much, much cheaper than getting sued.
"The life of a patent solicitor has always been a hard one."  Judge Giles Rich, Application of Ruschig, 379 F.2d 990.

Disclaimer: not only am I not a lawyer, I'm not your lawyer.  Therefore, this does not constitute legal advice.


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