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By MoBo On 03/22/04  

I've been brainstorming to find a name for my new business and I thought I had the perfect one so I went to search the trademark database to see if it was taken. It was. But the thing is that the name is taken by a meatpacking company in Tennesse. I've heard that two companies can have the same name if they aren't in competing markets (which we won't be) but I can't find any info on that to see if it's true. Can anyone help?

By sarahelizabeth On 03/23/04  

i might be wrong, but i think that's something that just comes up in lawsuit settlements--for example, my parents used to own a frame shop, and another company started using the same name and then sued them (!) for using it. basically since the other company was willing/able to spend more $$ on legal fees to fight for the name, so my parents settled on only being able to use the name within a certain area, while the other company could use it anywhere else.

also, the thing about trademark law that most people don't realize is that once you trademark a name, you're kinda responsible for policing it yourself. so it would mostly depend on how vigorous the other company is in doing that.

By MoBo On 03/23/04  

Wow I can't believe that other company sued. Thanks for your help :-) On a plus, I've decided on a name that incorporates the first one I came up with and it isn't taken so now I won't have any infringment worries.

By SublimeStitcher On 03/23/04  

Well, it's my understanding that once you trademark a name, it's yours. Period. No one else can use it in any way, shape or form. For this reason, it can be kind of difficult to get a name approved for trademark and why so often they are made-up words like Xitztron or something.

When you see a trademarked phrase like "Only the best!" you might notice that it's always presented as a the phrase is only trademarked as a logo. Does that make sense?

"also, the thing about trademark law that most people don't realize is that once you trademark a name, you're kinda responsible for policing it yourself."

Actually, that's not entirely true. You receive notifications from the registry office any time someone registers a trademark that appears similar to your own with a letter saying "If you find this application to be in conflict with your trademark, contact your lawyer." I get them all the time, like if someone registers "Sublime Seasonings" but I don't pursue it. I'm not exactly sure how this works, but I know that all applications for trademarks goes through a publication process where they are first reviewed for conflicts with existing trademarks.

If you're serious about getting a name trademarked, get a lawyer to do it for you. That way you ensure it is done properly. There are all types of ways you can mis-categorize your trademark, be out a bunch of money, etc. Expect to pay around $1200.

eta: I've said this before, and it varies legally from state to state, but you can use the "TM" symbol freely like you would a copyright symbol without actually registering. You can NOT however use the circled 'R' without actually having a registered trademark. TM means pending trademark, the circled 'R' means registered.

By sarahelizabeth On 03/23/04  

i don't think i explained myself very well on the "policing it yourself" thing. what i meant is exactly what sublimestitcher brought up in her example--that if somebody uses part/all of your name, it's up to you to decide whether or not you want to take legal action (or whether it's worth it). for example, if you decided you use the name you originally wanted, and the company found out about it, it would be for them to decide whether or not to do anything about it.

By loulou On 03/23/04  

I used to work for a company with a name that had been TMed by another company, so the owner filed with one company name and then used the dba (doing business as) so he could use the name the other place had put the TM on.

By MoBo On 03/23/04  

Thank you to everyone who posted. Reading over everything, I think that the best way to go would be to get a lawyer-which I can't afford right now unfortunately so I guess I'm at a dead end for now. Thanks again.

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