Q: My business name isn’t trademarked, but is reg with the county & I operate a website and social media accts under it

A: Based on your prior use of the mark, even if not registered, you should prevail over a later user of the mark in any litigation or administrative proceeding such as the US Patent & Trademark Office. If the later user has applied for federal registration, and that application advances to the point it is published for opposition (these days that is at least 10 months after filing), you can (and certainly should) file an opposition to the registration. Meanwhile, it would be prudent for you to go ahead and file your own application to register the mark. You should also give written notice to the later user of your rights in the mark based on your prior use, and that continued use is infringing because of the likelihood of confusion. Then, that user will be informed that continuing the use will constitute unfair competition.

A: It depends on whether use of the mark is sufficient to be considered use "in commerce". Through the business the mark would need to be associated with the sale of goods or providing a service, in addition to being associated with social media accounts and websites. If there have been multiple visits to a website that uses a mark (without sales), this is considered minimal use that does not establish “use in commerce” to establish priority of use as a trademark. See Garden of Life, 318 F. Supp. 2d at 959. So, "use in commerce" must be consistent with proof that the mark has been used as a brand name in sales or provision of services.

It also depends on whether the accused mark in retail is in the same class of goods or services as your business. If it is a different kind of industry in retail, then priority of use may not apply, where it may not affect consumer confusion of the source of the mark in your line of business or industry.

A: Under trademark law, you may have established "common law" trademark rights through your prior commercial use of the business name in retail. These rights, known as "use-based rights," can protect your continued use of the name within your geographic area of operation, even without federal registration.

Your documented history of using the name - including your DBA registration, website domain, social media presence, and paid advertising - helps establish that you were the first to use this mark in commerce. This evidence of continuous use over three years strengthens your position if you need to challenge the other party's trademark application or defend your right to keep using the name.

However, you should consider consulting with a trademark attorney promptly to discuss your options. While your prior use gives you some protection, having only common law rights can make enforcement more challenging than if you had federal registration. Your attorney can help evaluate whether to file an opposition to the pending trademark application and potentially pursue federal registration of your own mark to secure broader protection.