Can I Register A Trademark That Is Similar To My Older One

Some businesses receive threatening letters or emails at some point in which the senders accuse them of trademark infringement. These accusations are frequently based on the apply of similar logos, slogans or names. With the net and Google, trademark infringement accusations are becoming more common. Whether or not you might have to negotiate with the sender of a cease and desist letter volition depend on whether your concern and the other one share the same industry, whether the two businesses share a geographical marketplace, which business first used the marker and which business registered the mark first.

What are trademarks?

The marks that a business uses in the course of conducting its business include the concern name, logo and slogan. When these marks are registered with the Usa Patent and Trademark Office, they are called trademarks. Registering a trademark gives a business protection for its apply in the U.Due south. This means that other parties are not immune to utilize a business concern's trademarks when they are conducting business.

Not all marks are able to exist trademarked. Some marks are descriptive in nature and unable to be protected through the trademark process. When at that place are marks that are protectable and that are being used past two different businesses, even so, the question volition come down to which business's use of the marker will prevail.

It is nevertheless possible for ii unlike businesses to take similar names are marks. For example, Delta Faucets and Delta Airlines have obviously similar names. However, the question is determined past the potential for the confusion of consumers. If ii similar marks are used in dissimilar industries that are located in different markets, defoliation is unlikely. On the other hand, if ii businesses that are using like marks are operating in markets that overlap, priority will exist an outcome.

Does the other business organisation share the same industry equally yours?

The guiding principle of trademarks is to avoid consumer confusion. If there is little likelihood that the customers of the accusing business organisation will be confused by your use of a similar marking, in that location is very little take a chance that there will exist a trademark upshot. Courts look at several factors, including whether or not consumers are likely to be dislocated by 2 businesses that operate in the same industry.

If you are using a business proper noun that is the aforementioned every bit some other visitor in your industry, caution is warranted. If you are instead using a name that is the aforementioned as some other company's name that offers completely different services or products, there is probably not a trademark event.

Does the accusing business organisation operate in your geographical market?

Consumers are less likely to be confused if your concern and the i that is claiming that you infringed its trademark are operating in different geographical markets. For instance, traditional businesses that were located in dissimilar states that shared the same names in the past could continue to operate because they weren't competing for the same consumers. All the same, the cyberspace has complicated the analysis. If your business concern and the other concern are both online, yous may have overlapping markets. In that case, you will need to carefully analyze the other applicable factors.

If the other business is a traditional visitor that is based in another state and that doesn't exercise very much concern on the internet, you might be okay. However, you may be unable to perform similar services in the other concern's land.

Which of the two businesses used the mark first?

If your business shares the aforementioned market equally the other business, you will so demand to figure out whether your concern or the ane that is claiming trademark infringement used your business organisation proper name start. If you can show that your business used the name outset, you will concord senior rights to information technology.

Which business registered the mark beginning?

Which business registered the mark first

Before applying to register a mark, a business concern should ideally comport a thorough search of its market to make sure that another business hasn't already been using it. However, people sometimes do register marks that were already in use by other businesses. If you began using the name before the other visitor registered information technology, you will be able to proceed using it. However, you volition only be able to employ information technology in the market place in which you were using the mark when the other company registered the name. The other company that has registered the trademark volition have priority for its use in all other markets and tin can stop you from using it in new locations. This means that you should annals your trademarks regardless of how long you have been using them.

If the other business concern registered the mark prior to your first use of it, there is an issue. When a company registers a mark, other businesses are considered to accept constructive notice that the mark cannot be used. If you find out that this is true, you should settle the infringement claim.

Examples

1. Neither business using the same proper noun has a federally registered trademark.

Imagine that two businesses that operate online both launched their websites in the same calendar month and year and are using the aforementioned or a similar name. If both of these companies offering the aforementioned types of services in the same markets, in that location is clear potential for customers to be confused. When neither business is able to bear witness that it has senior rights, the courts will alter one of the marks to minimize the confusion.

If i business is able to prove that it used the name first, there would be a articulate priority for that concern. it would exist able to continue to use the name in its market.

two. The other business registered the mark first, but your business was the outset to use it.

If you began using your business concern name in commerce before the other visitor began and registered information technology, you will likely be able to continue to use it in the market in which you were using it when the other company registered information technology. Yet, you will not be able to expand into new markets.

If you are able to prove that the other concern knew that your company was using its name, you may be able to prove that its infringement was willful. When willful infringement is proved, the other company may have its trademark registration canceled.

three. The other visitor was the start to apply the marking and to obtain a registered trademark for information technology.

If the other company began using the marker and also registered information technology earlier you visitor began using information technology, it can strength yous to end using your business's name. It might as well exist able to recover damages. If this is your situation, you need to go out of it as quickly as possible.

4. Both companies operate in markets that overlap and registered the proper name.

In rare cases, ii different businesses that operate in markets that overlap will obtain a federal registration for the aforementioned or a similar mark. In order to resolve this type of state of affairs, information technology will likely require either a lawsuit or an authoritative proceeding with the USPTO. Considering the costs of litigation can exist high, it might be wiser for y'all to try to negotiate a settlement.

5. Earlier you used your mark, the other company filed an intent to employ application with the USPTO.

It is a smart thought to file an intent to utilize application with the USPTO when you identify a proper name for your business that y'all would like to use. If you file this application and someone else begins using a similar proper noun earlier your business launch, your rights will exist protected.

Registering your marks is an important office of your business plan. If you fail to register a marking and later on receive a cease and desist letter of the alphabet, you may need to get help from an experienced intellectual belongings chaser. A lawyer may analyze the different factors that courts consider in order to make up one's mind whether a valid consequence exists. If in that location appears to be a problem, your lawyer may negotiate with the other concern in an attempt to reach a settlement. To schedule an appointment, contact us today by phone, or fill out our contact form.