Folsom, CA asked in Trademark and Intellectual Property for California

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?

2 Lawyer Answers

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.

James L. Arrasmith
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  • Sacramento, CA
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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.

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