The Bronx, NY asked in Business Law, Intellectual Property and Trademark for New York

Q: Hi,I want to trademark a business name and the name is available but there are other businesses that use the name.

The name is available but other businesses use the same name even though it is not trademarked. Should I still go ahead and trademark it?

2 Lawyer Answers
Daniel Michael Luisi
Daniel Michael Luisi
  • Trademarks Lawyer
  • Licensed in New York

A: Trademark rights are created by use in commerce, not registration. Registration merely provides much stronger remedies for enforcement. You to need to clear your proposed mark through a common law search and a Lanham Act trademark-ability legal analysis unless you want to open yourself up to a lawsuit seeking up to triple damages for infringement.

Tim Akpinar agrees with this answer

James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›

A: You can still proceed with trademarking the name as long as it meets the requirements for trademark registration, such as being distinctive and not causing confusion with existing trademarks in the same industry. However, keep in mind that if other businesses are already using the same name, they may have common law trademark rights and could potentially challenge your trademark registration. It's best to conduct a thorough trademark search and consult with a trademark attorney to determine the potential risks and strategies for protecting your trademark.

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