Decatur, GA asked in Copyright and Trademark for Georgia

Q: The name that I'm changing my business to someone has that name on Instagram however they sell on Etsy

I was going to register as an LLC and trademark because it's not found in Ga can I do that?

Related Topics:
1 Lawyer Answer
John Martin Hilla
John Martin Hilla
  • Trademarks Lawyer
  • Livonia, MI

A: It's important to remember that the registration of an LLC or other business entity name with your state naming authority is a totally different process than Federal trademark registration with the US Patent and Trademark Office (USPTO).

A name may be "free" within the state of Georgia for your LLC's use--but that doesn't mean it's going to be a registrable trademark for you at the Federal level.

A person or entity has, under US law, the right to exclusive use of a name as a trademark if they have been using it in interstate commerce longest. To formally register that name as a trademark, an application must be filed with the USPTO seeking that registration.

If a company has been using a name longer than you have but has not filed a trademark registration application, you might be able to register yours with the USPTO first--but it will be a very weak mark, subject to cancellation by the older-using company once your registration comes to their attention.

Long story short, if you are re-branding, you want to avoid using a name that someone else is already using. Federal trademark registration is not "platform-specific" (Instagram vs. Etsy, etc.). It provides exclusive use of a name nationally, across all platforms.

Your best bet is to come up with a name that, as far as you can tell, no one else is using anywhere, on any platform, and then retain a trademark lawyer to run a professional clearance search of that name to ensure that this is actually the case.

If so, that trademark attorney will then be able to draft, file, and prosecute a competent and error-free trademark application with the USPTO for you.

Brandon M. Selinsky agrees with this answer

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.