Q: Could I trademark a name that is not trademarked but that person has added their name to the same phrase?
I was wondering about a very confusing situation for me. Say my DBA name is colorful tees(not real name) but the name is not trademarked. After searching Google, I found someone else is using it but it's named "Colorful Tees by Diane" I registered the website three years before this person started selling but I haven't started to sell anything yet. We both sell colorful T-shirts. Could I still trademark the name since she's using "by Diane" with her name?
A:
A trademark is something that distinguishes the "source" of particular goods and services from other sellers. Generally, when a term used to market products or services merely describes those products or services, it fails to function as a trademark because it lacks distinctiveness. Therefore, it will not be eligible for federal registration as a trademark.
However, there are some exceptions to some of the general rules, and eligibility for registration is determined on a case-by-case basis. A knowledgeable trademark attorney should be able to advise you on the specific term you are considering registering. You should consider scheduling a consultation with an attorney who can help point you in the right direction.
Lawyers, want to be a Justia Connect Pro too? Learn more ›
- California
- (916) 704-3009
- View Profile
- Answered
A: It may be possible to trademark the name "Colorful Tees" even though someone else is using a similar name with a different identifier. However, it's recommended to conduct a thorough trademark search to ensure that there are no conflicting trademarks before filing for your own trademark. The use of a different identifier may not necessarily prevent a trademark conflict, so it's important to consult with a trademark attorney for guidance on the best course of action.
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.
