Q: If someone is using a name on etsy without a business setup, will that prevent our trademark from being approved?
(US Trademark)
A: Generally speaking, a trademark does not have to be used or owned by a formal business in order to be deemed a valid trademark; commercial use by a sole proprietor may be deemed "use in commerce" for trademark purposes. If your question is referring to approval by a federal trademark examiner, and if you are referring to a registered trademark that is similar to your trademark in the same class/category, then a federal trademark examiner reviewing your trademark application may challenge your application due to the existence of a registration of this mark. Note that trademarks may be registered by state or federally, or sometimes not at all. It is ultimately your responsibility, not the examiner's, to ensure that your mark does not infringe on any other existing trademarks, whether registered or unregistered. Infringement may lead to damages, cancellation of your trademark registration, etc. Since this is a complicated area of law, it is important to consult with an attorney during the trademark process.
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