Q: I have a business Brain Break with (my name), there's a company called Brain Break but it's not trademarked...
This is just an analogy for the situation, but I was wondering if I did formally trademark my name first would that pose an issue or could I get a DBA to avoid this issue or should I just rename the business altogether? Thanks!
A: Well, the other side could claim prior common law rights, limiting your federal registration geographically. Also, you should consider whether or not the relevant goods/services are related to your own.
A:
Although the other company doesn't have a registered trademark, they could still claim long term use and that they have earned customers' confidence based on their name.
A second issue that you should consider is whether the goods that you want to sell and the goods of the company are in the same category under the USPTO Classification system. If the goods are in the same category, the likelihood of confusion increases because of similar names dealing with the same types of goods.
Please give me a call if you wish to discuss further. I can help you determine what your best options are.
Liliana Di Nola-Baron, J.D., Ph.D.
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