Trademark question

[Team6Labs]

Missouri
Ok here is my question - I want to file a trademark for something. There are no registered trademarks for my term. But there are a few people that have used the term I want to file for in their business. Is it legal for me to file for the trademark? Can I expect to have it granted?

Note, I don't plan on suing anyone that used the trademark before it's registered. They will be able to keep using the mark without me suing them.

Any advice is appreciated.

 

[quincy]

Missouri
Ok here is my question - I want to file a trademark for something. There are no registered trademarks for my term. But there are a few people that have used the term I want to file for in their business. Is it legal for me to file for the trademark? Can I expect to have it granted?

Note, I don't plan on suing anyone that used the trademark before it's registered. They will be able to keep using the mark without me suing them.

Any advice is appreciated.

Has your trademark been used in commerce? If already used in commerce, has it been used longer than the other entity or entities that use the same or similar trademark? Are one or more of these entities using the trademark for the same or similar product or service?

It is legal to file for registration of a trademark but whether the registration will be granted/opposed is a big question mark. It depends on all sorts of facts and factors best reviewed personally by an attorney in your area.

As a note: If there is another or other users of the trademark, they could potentially sue you over your use, even if you have no intention of suing them. Something to consider - and one reason why it is smart to come up with a unique name for your business/product/service, one that no one else is using or has used.

Good luck.

 

[Team6Labs]

Has your trademark been used in commerce? If already used in commerce, has it been used longer than the other entity or entities that use the same or similar trademark? Are one or more of these entities using the trademark for the same or similar product or service?

It is legal to file for registration of a trademark but whether the registration will be granted/opposed is a big question mark. It depends on all sorts of facts and factors best reviewed personally by an attorney in your area.

As a note: If there is another or other users of the trademark, they could potentially sue you over your use, even if you have no intention of suing them. Something to consider - and one reason why it is smart to come up with a unique name for your business/product/service, one that no one else is using or has used.

Good luck.

Thanks for responding. Someone else has claimed TM rights to the trademark, but have not registered it. I haven't used it yet, but I will if I get the trademark. Is it possible for me to get the trademark registered without being sued, bypassing them. They have used the mark longer than I have. I have not claimed any rights to the mark, but is it possible for me the register it because they only have TM? Thanks

 

[quincy]

Thanks for responding. Someone else has claimed TM rights to the trademark, but have not registered it. I haven't used it yet, but I will if I get the trademark. Is it possible for me to get the trademark registered without being sued, bypassing them. They have used the mark longer than I have. I have not claimed any rights to the mark, but is it possible for me the register it because they only have TM? Thanks

Trademark rights arise through the use of the trademark in commerce. If someone else is already using the trademark, he has rights to the mark that you do not have.

You will want to file an intent-to-use application with the U.S. Patent and Trademark Office if you want to reserve the mark, but if the trademark is already in use then your mark may not be approved. Even if you were to file a registration application for a mark you are currently using, the first user of the mark could oppose the registration.

You need to be using your mark in commerce BEFORE your mark will be registered.

I think you need to pick an entirely new name for your trademark and/or sit down with an IP attorney to review the facts and your options. I also think that, because you are showing confusion about trademarks and trademark law, you might benefit by going to the U.S.P.T.O. website and reading up on trademarks. It is a fairly easy site to navigate - http://www.uspto.gov.

Good luck.