Can I trademark a name that's already in use by someone else?

Possibly - you might be able to trademark a name that's already in use if your product or service is completely unrelated from the existing, registered version and there's little to no chance of consumers being confused and thinking it's the same company.

This information was provided by our founding attorney, Xavier Morales, Esq. 

When it comes to trademarking a company name, you may find that your name of choice is already taken. If so, you will need to examine and compare the industries of your respective businesses. If you operate within non-competing industries, you may still be able to trademark your name.

Can Two Companies Have the Same Name?

As is often the case in legal matters, the answer here is "maybe."

For instance, the name "MY GIRL" is a registered trademark owned by Enertec Enterprises for a line of dolls and accessories. However, there is a second trademark registration for the same name "MY GIRL" that is owned by Acushnet Company for a line of golf putters. The reason that these two different companies could register a trademark for the exact same name is that they operate in totally unrelated industries, and offer totally unrelated products. One company sells dolls, whereas the other company sells golf equipment. Because of the very separate lines of business, there is no trademark infringement happening between these two companies despite their similar name. (You can find out if there is another person or company using the mark you have in mind by searching thee USPTO database.)

This is, in general, the test for if you will be able to register a mark that's already in use. Could consumers be confused and think your product is the work of the other company?

What 'Likelihood of Confusion' Means

In trademark law, 'Likelihood of Confusion' is a principle used to determine whether a proposed trademark is too similar to an existing one. The aim is to prevent consumers from being misled about the origin of goods or services. Factors considered include the similarity of the marks, the similarity of the goods/services, and the marketing channels used.

How it influences the decision to grant a trademark

The 'Likelihood of Confusion' significantly influences whether a trademark application is approved or not. If an examining attorney at the USPTO determines there's a significant risk of consumer confusion between the proposed trademark and an existing one, the application will likely be refused. Getting solid legal advice from a trademark attorney before you attempt to secure trademark rights from the U.S. Patent and Trademark Office for a name that already exists is highly recommended for all small business owners.

Avoiding an existing trademark that is likely to cause confusion can save you a significant amount of time and money, as the federal registration process can take over a year to secure your exclusive rights to a brand name or other mark. Starting that process to ultimately have the application rejected due to similar marks would be a large waste of time, not to mention the costs you may incur when you need to change the name of your business or product.

What About Trademarking People's Names?

While we've covered trademarking company names, you may be wondering about registering your first or last name as a trademark. We've covered those in several other articles.

From our article Can You Trademark a Surname (Last Name)? would have to establish that consumers in the marketplace now view your mark as a reference to your company, and not as a reference to your last name.  So yes, it’s entirely possible to trademark a last name, but if you cannot satisfactorily prove “acquired distinctiveness” to the United States Patent and Trademark Office (USPTO), you will be denied the full protection of federal law for your trademark.

From our article Can You Trademark a First Name?

You may trademark a first name if you use it as a brand for your product or services. For example, the name “JESSICA” is trademarked for a line of skin care products. Since trademarks deal with the way that your products and services are presented to your customer, you may choose to utilize your first name as part of your brand identity.

From our article Can I Trademark My Initials?

You can trademark your initials so long as you are utilizing them to distinguish your goods and services from another company or individual’s products. Initials served as some of the earliest maker’s marks and survive to this day as a common trademark.

How We Can Work Together

Do you want to trademark a name that may already be in use? Get in contact with us today to learn more about your trademarking options.

Xavier Morales, Esq.

About the Author

Xavier Morales, Esq.

Mr. Morales founded his trademark law practice in January 2007 with the goal of providing intellectual property expertise to entrepreneurs and businesses around the country. Since then, he has filed more than 6,000 trademarks with the USPTO. You can learn more about Xavier here.

Protect Your Mark

Get the trademark protection you need for your business name, logo, or slogan.

Or call us today


You'll Speak directly with our founding attorney.


Law Office of Xavier Morales
P.O. BOX 3256
Austin, TX 78764

office: 1-866-618-2517
fax: 1-866-639-4889