biz name exists but no uspto listing

[djsted]

What is the name of your state (only U.S. law)? Florida

I want to trademark a business name that has prior use but no USPTO filing.

There is a book by the same name and at least 3 businesses use the term for their blog or product but no one has filed with the USPTO (according to a TESS search). All businesses are in the same industry since the word is a made up word of the industry (just add 'ology' to the industry term and you have my meaning).

One business has placed a (tm) next to the word. They may have done this without filing. A call to the USPTO offices says that even trademark applications will be listed in any TESS query.

Do I have a snowballs chance of 'owning' the word?

thanks so much for your guidance.

[FlyingRon]

Trademarks are acquired by use in commerce not by filing paperwork. Federal registration gets you some added benefits but is not strictly required. The use of the designation "TM" or just "Trademark" is not improper on unregistered marks. Once registration is received, the word "Registered" or the Circle-R symbol can be used.

Many things are involved as to whether you can use that work as your own mark or achieve registration for it. I suspect that if all these other users are in the same business, you'll find the latter difficult and you may find those who are already using the mark likely to make things difficult for you.

[djsted]

thanks for your incredibly quick reply.

If I can't trademark it (and presumably others could not either) would it be prudent to use the name anyway (it's really a good name!) knowing that I won't be able to 'own' the word legally?

[The Occultist]

That's up to you. If you are in a similar business as others using that name, you might find that they may send cease/desist letters to make you stop using the name, if not just outright sue you.