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. (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?

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.

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)?

...you 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.

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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.

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