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LLC or trademark

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Bayarea510

Junior Member
I've had a clothing idea for a few years now but never got a trademark for it. Recently I noticed another person took the same idea and started a Limited Liability Corporation with it. The names are almost identical but the logos are not the same. Would it be worth it to try and get a trademark for my clothing idea or is it too late since the other person already started a LLC?
 


tranquility

Senior Member
Um..no. That another person is making money with a "trademark" you thought of years ago and did nothing with is irrelevant. In fact, while I'm sure I could tease out more facts to find the more appropriate portion of IP law which applies, I bet you have nothing.

Nothing. Not just a little bit of something, but, nothing.

In fact, that you think you may have had something makes me interested. What are you talking about? Why do you think you have something? I must be missing something.
 

Bayarea510

Junior Member
I spoke to the person and they haven't got a trademark for it just a LLC. And after speaking to a few people I was told that without a trademark nothing is safe, not even a LLC. I don't get what the idiot above is blabbering about. I'm just looking for a simPle answer to the question not a whole page talking about some bull****.
 

FlyingRon

Senior Member
You don't just "get a trademark." Trademark rights are derived from using the name in commerce.
An getting an LLC name is not necessarily infringing on a trademark (even if you legitimately had one) nor does it establish trademark rights just because it is created.

Please cut out the profanity. I don't know what you were told or led to believe, but tranq is right and the three sentences above distill it down as simple as I can make it.
 

Bayarea510

Junior Member
So is there no point in pursuing a trademark for the idea before the other person does?? Thanks for the help
 

tranquility

Senior Member
In fact, that you think you may have had something makes me interested. What are you talking about? Why do you think you have something? I must be missing something.
The questions are still on the table. I'll add another, what is your goal?
 

JustAPal00

Senior Member
How can you refer to someone as an idiot when you can't even post an inteligable question? Do you have any idea what you're talking about?

A "trademark" is to protect a name like "Pepsi", a symbol like the Nike "Swoosh", or a slogan like "I Love New York". You could not form a drink company and call it Pepsi because they have their name trademarked, even if you invented a drink that tasted exactly like Pepsi, you would have to call it something else.

A "Patent" is to protect a product idea or invention. If you were to invent a new style of pants or come up with design for something. You would apply for a patent to keep people from copying your idea.

Now if you have an idea for the name of a company that is being used by someone already and they don't have it trademarked, you may still be able to use it. What you can do is apply to the state for the use of a ficticious name for your business, if they say yes then you can use it. If you are thinking that you can apply for a trademark and then force the other business to change their name, it's not going to happen. Likewise for the patent. If they're using it first, you will have a very difficult time getting a patent.

A prime example is the yellow pages walking fingers. It is not protected by a patent or trademark, so anyone can use it. There is no way anyone could get a trademark on it now!
 

Bayarea510

Junior Member
My goal is to start my own clothing company. The other company that has the same name just opened and dosent have a website, a store or anything.
 

FlyingRon

Senior Member
THere are two issues here. Company names and trademarks. You may be enjoined from creating a company by the same name as another company in the same state because they want the names to be unique. For example, I couldn't create a company called "Fizzy Soft Drinks" in Virginia as there was already one by that name. I could bet "FZ, Inc." though. Of course, that's just the business name and not the mark of your product or service.

If you want to use the mark in commerce, you have to get off your rear and start using it. There's no way to protect a trademark in advance, does the company that was created with the name get any such rights. Just because Fizzy Soft Drinks exists, if they're not using that as a trademark, I could as FZ market my soda as "Fizzy!".
 

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