How do I proceed trademarking my business name when someone else is starting to use it?

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How do I proceed trademarking my business name when someone else is starting to use it?

I’m planning to trademark a name/logo for a publication I’m starting. In the first two years of planning this, there has been no conflicts with the name. However, just as I was starting to file the paperwork, an individual/organization suddenly began posting and publishing under the same name I was planning to use. Though I believe that this is purely coincidence, I’m not sure how to proceed filing the trademark while someone else has start using this name in commerce before I have. As of now, they have not trademarked the name.

Asked on March 26, 2012 under Business Law, Pennsylvania

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

You should probably choose a different name. While you could try to file a trademark application (go to the U.S. PTO website; there is an online application which takes about an hour to fill out and costs around $300 if you're only claiming for one type of goods or services) and hope that the application is granted, technically you can only trademark if you are the first to use the name in commerce. If someone else started using it before you, then even if they have not registered the name, you should be ineligible to trademark it yourself. That means that your application might be denied; or even if it is granted, it is possible this other person or business could file a later challenge to it based on their  use, which pre-dated yours.


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