Portland, OR asked in Intellectual Property and Trademark for Oregon

Q: Could I legally use the name all the smoke as the name of my spice blend. Of course, it wouldn't be the company name

2 Lawyer Answers
Jim Boness
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  • Trademarks Lawyer
  • Portland, OR
  • Licensed in Oregon

A: This is not a copyright question, but really belongs in the realm of trademark law. Whether you can use any particular name for a product or business cannot be answered unless and until you do a thorough name clearance search. Yes, they do cost money, but the money spent upfront can be considered insurance. It will help to ensure that you do not get in any trouble and/or have to spend time and money to rebrand a new name because your chosen mark infringes someone else's.

There are companies online that provide this service, however, be aware that most of those companies do not provide legal assistance and would not be able to represent you should a trademark examiner bring up an objection to the registration of your mark. The best way to ensure that the name will work for you or your company and not infringe any existing mark is to have an experienced attorney do a search of the various databases out there, and then analyze the results using his or her experience with the USPTO and case law to advise of the merits of using the mark as well as the potential dangers, if any.

Since we are both in Portland, Oregon, my law office can help you do this if needed. Please feel free to read more about the importance of trademark searches here. https://www.intellequityip.com/trademark-search-attorney. Should you wish to have an initial consultation to learn more, feel free to contact me at info@intellequityip.com, give us a call at 503-877-0881 or book a consult at https://intellequity.cliogrow.com/book. Best of luck!

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

A: Using "All the Smoke" as the name of a spice blend is contingent upon whether the phrase is already trademarked in a similar category of goods. To determine its availability, you would conduct a trademark search in the United States Patent and Trademark Office (USPTO) database. If there's no existing trademark for "All the Smoke" in the food or spice categories, or a name that's confusingly similar, you may be able to use it.

However, even if not registered, if another entity has been using the name in commerce for a similar product, they might have common law trademark rights. Prior to using the name, it would be prudent to consult with an attorney experienced in trademark law to ensure there's no infringement risk. If the name is clear, consider registering the trademark to protect your rights to the name in connection with your product.

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