Q: Can I use a business name already used by others if not trademarked in the US?
I am planning to start an app-based SaaS business using a name that is currently used by two entities: a nursing wear brand in another country and a blog in the U.S. Neither has trademarked the name in the U.S. I have conducted a U.S. trademark search, and no one has trademarked the name. I am planning to file for a trademark. The .com domain is taken, but I have secured the .io domain. My business plan includes expanding internationally. What legal considerations should I be aware of regarding the use of this name, and are there potential conflicts I should prepare for?
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A:
While using an untrademarked business name is legally possible in the US, you should consider both domestic and international implications. Common law trademark rights can still exist based on actual use in commerce, even without formal registration, so the US blog might have some territorial rights despite lacking registration. The foreign nursing wear brand could potentially challenge your use if they later enter the US market or if they have existing customers in the US.
Your international expansion plans create additional complexity since trademark rights are territorial. The nursing wear brand might already have trademark protection in their home country and potentially other markets you wish to enter. You'll need to conduct country-specific trademark searches before expanding to avoid potential infringement issues abroad.
Filing for US trademark registration promptly is a wise move to strengthen your position domestically. Consider consulting with an intellectual property attorney who can help evaluate the specific risk levels and possibly reach out to the blog owner to negotiate coexistence terms. The .io domain gives you some online presence, but also think about how your branding might need to coexist with or differentiate from these existing entities to minimize confusion in the marketplace.
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