TradeMark Something Someone Is Already Using But Not Trademarked

[masonmilby]

My state is Kentucky and I wanted to trademark the name "LostMode". But the thing is, apple is using LostMode in one of their products but has not trademarked it. Could I trademark it first and make apple get rid of it or pay me to use it?

 

[LeeHarveyBlotto]

My state is Kentucky and I wanted to trademark the name "LostMode". But the thing is, apple is using LostMode in one of their products but has not trademarked it. Could I trademark it first and make apple get rid of it or pay me to use it?

It would be cheaper for them to simply litigate you into quitting/bankruptcy.

 

[justalayman]

If you recognize the product by its name the they already do have trademark rights earned. I suspect you are referring to they may not have registered their trademark claim. That does not mean they do not claim trademark rights in the name.



And the. Of course, if this is Apple, as leeharveyblotto said: do you have enough money to even pay the ante for that game? Since Apple has somewhere around $150 BILLION in cash just setting in banks, I suspect you can't go toe to toe with them.

 

[justalayman]

From what I have seen it is not lostmode anyway. It is lost mode and that is likely why there is no TM claim. It is not something Apple uses as a TM.

So, do you use LostMode in your business as an identifier for your company? If so and if the TM office will accept that as a TM, register away. It will not affect a Anybody that describes a mode on their equipment as lost mode since that is a descriptive term and not an identifier of the company.

 

[masonmilby]

LostMode

I use LostMode as my company identifier.

 

[quincy]

I use LostMode as my company identifier.

I do not see that "LostMode" is a federally registered trademark, but you would probably want to do a more thorough search to determine if the name is already in use by another for the same type of company, product or service as yours. It is possible (I am not sure how probable) that there could be a state registration of the name, or the name could be used and gained rights as an unregistered trademark.

Apple is using "lost mode" as a button on their Find My iPhone app but the words lost and mode on their own are not rights-protectable. These are generic words that can be used by anyone. Combining the words as you have could allow you to federally register "LostMode" as a company-identifying trademark, but you would not be able prevent others from using the words.

 

[masonmilby]

OK thanks! So I know that if I register LostMode then I can't stop people from using lost mode but I can stop people from using LostMode.

 

[justalayman]

OK thanks! So I know that if I register LostMode then I can't stop people from using lost mode but I can stop people from using LostMode.

Is this you?



https://www.lostmode.com/

 

[quincy]

OK thanks! So I know that if I register LostMode then I can't stop people from using lost mode but I can stop people from using LostMode.

If you use LostMode as your company, product or service identifier, and there is no one else with prior and existing rights in the name, you can prevent someone else from using LostMode (or a similar name) for their own company, product or service in a way that confuses consumers or that dilutes the strength of your mark or that disparages your mark.

You cannot prevent people from using LostMode to describe your company and you cannot prevent people from using the words lost and mode.

It will be up to you as the trademark holder to police the market to ensure your rights in the mark are not being infringed.

And, again, you will probably want to do a search that includes more than just a USPTO record search, as rights to a trademark in the U.S. arise from the use of the mark in commerce and not through registration. Running everything by an attorney in your area can always be smart, too, to ensure that all that needs to be considered is considered.

Good luck with your company, masonmilby.