If you began using the name before the other company registered it, you will be able to continue using it. However, people sometimes do register marks that were already in use by other businesses. Which business registered the mark first?īefore applying to register a mark, a business should ideally conduct a thorough search of its market to make certain that another business hasn’t already been using it. If you can show that your business used the name first, you will hold senior rights to it. If your business shares the same market as the other business, you will then need to figure out whether your business or the one that is claiming trademark infringement used your business name first. Which of the two businesses used the mark first? However, you may be unable to perform similar services in the other business’s state. If the other business is a traditional company that is based in another state and that doesn’t do very much business on the internet, you might be okay. In that case, you will need to carefully analyze the other applicable factors. If your business and the other business are both online, you may have overlapping markets. However, the internet has complicated the analysis. For instance, traditional businesses that were located in different states that shared the same names in the past could continue to operate because they weren’t competing for the same consumers. Does the accusing business operate in your geographical market?Ĭonsumers are less likely to be confused if your business and the one that is claiming that you infringed its trademark are operating in different geographical markets. If you are instead using a name that is the same as another company’s name that offers completely different services or products, there is probably not a trademark issue. If you are using a business name that is the same as another company in your industry, caution is warranted. Courts look at several factors, including whether or not consumers are likely to be confused by two businesses that operate in the same industry. If there is little likelihood that the customers of the accusing business will be confused by your use of a similar mark, there is very little chance that there will be a trademark issue. The guiding principle of trademarks is to avoid consumer confusion. Does the other business share the same industry as yours? On the other hand, if two businesses that are using similar marks are operating in markets that overlap, priority will be an issue. If two similar marks are used in different industries that are located in different markets, confusion is unlikely. However, the question is determined by the potential for the confusion of consumers. For example, Delta Faucets and Delta Airlines have obviously similar names. It is still possible for two different businesses to have similar names are marks.
When there are marks that are protectable and that are being used by two different businesses, however, the question will come down to which business’s use of the mark will prevail. Some marks are descriptive in nature and unable to be protected through the trademark process.
Not all marks are able to be trademarked. This means that other parties are not allowed to use a business’s trademarks when they are conducting business. Registering a trademark gives a business protection for its use in the U.S.
When these marks are registered with the United States Patent and Trademark Office, they are called trademarks. The marks that a business uses in the course of conducting its business include the business name, logo and slogan. Whether or not you might have to negotiate with the sender of a cease and desist letter will depend on whether your business and the other one share the same industry, whether the two businesses share a geographical market, which business first used the mark and which business registered the mark first. With the internet and Google, trademark infringement accusations are becoming more common. These accusations are often based on the use of similar logos, slogans or names. Some businesses receive threatening letters or emails at some point in which the senders accuse them of trademark infringement.
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