Q: Can I trademark a business name in CO that is already in use for same type of business in CA without a trademark?
Want a federal trademark for a Colorado based business (local and online sales), but the same name is in use in California by another business (same type of product, just not trademarked). We could ship online orders to California based customers, and are concerned about lawsuits based on Common Law trademark rules.
A: The other business would likely continue to have common law rights to the mark in California. Generally a senior user of a mark retains the right to use the mark in geographic locations where their business operates, even if a subsequent user registers the mark on the federal registry. Depending on the facts, it may still be worthwhile to register the mark at the federal or Colorado state level.
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