Can I trademark only a business name, even if I have no stake in the business?

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Can I trademark only a business name, even if I have no stake in the business?

I know of a successful business that has applied for but failed to follow through on a trademark. It would appear as if they have left themselves exposed here. Can I trademark just the business name? I would make no claim to creation of the company nor any financial claim to previously owning the

trademark on the name. I’ve done a bit of research and it seems intellectual property is the core issue. As I have not had a hand in the creation, operating, management or ownership in said business they can claim I’m stealing their whole business. My counter is that they created the company but not the

concept they work with inside of the industry. Further, I just want the name and would make no financial claim to any profit made previous to me owning the business name. Now if I do trademark the name, am I liable to tell the business owners? As in if they continue to use the name without checking if they have right to, or is it my responsibility to inform them? From what I can tell the fault lies on the company, they need to be doing their legal due diligence. Inversely I should be able to claim any profit gained post me owning the trademark, correct?

Asked on March 29, 2017 under Business Law, Wisconsin

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

No, you cannot trademark this name.
1) You can't trademark names, etc. in the "abstract"--you can only trademark them in connection with actually having and providing in commerce goods or services. Trademark identifies the source of goods or services; the law does no let you trademark without providing same.
2) Even if the failed to follow through on the trademark application, if they are (presumably) using the name, you cannot trademark it because yours will not be the first use thereof. (That is an oversimplification, and there are exceptions, but generally, a trademark must be--at least within its  and related fields--original.)


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