Montebello, CA asked in Business Formation, Business Law and Trademark for California

Q: I have a question about a company name

Someone else has the company name I want but, they haven't been active since 2014 I believe. They don't have it trademarked i looked them up on the government trademark site and other sites they don't come up. Is it possible i can trademark the name and use it for my company?

1 Lawyer Answer
Barbara Berschler
Barbara Berschler
  • Trademarks Lawyer
  • Rockville, MD

A: Trademark rights are not merely created by someone registering the mark, whether with the USPTO or under a state's law. Under the common law, if you use a mark as a mark, you can acquire trademark rights in that mark. You would need to investigate further about whether the other person has "abandoned" the mark. It does not take much activity in order for a trademark to be kept alive.

However, if your use of the name/mark is for a difference purpose, you may be able to apply for the mark. By way of example, the mark "Dominion" is successfully used by a bank, electric company and sugar producer because a consumer would not be confused as to which company she was dealing with.

Dan Robinson agrees with this answer

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