If you’ve landed on this blog post, chances are you’re wondering about what to do if your trademark is already taken. Perhaps you’ve already discovered another business is using what you’ve hoped to trademark or you’re simply concerned about the possibility as you look into getting started. Standing in either place, it can be intimidating to move forward. Given that trademarking generally takes around a year (if everything goes smoothly) and can be a financial investment, we understand if you’re feeling hesitant!
Here at Zara Watson Law, we believe that feeling informed and empowered in your decisions as an entrepreneur is paramount. The trademarking process can often feel elusive and confusing so we wanted to break down these two scenarios to provide clarity and assist you in the decision process. Although you can trademark your brand name, course name, tagline, and more, let’s use the example of a brand name to keep this breakdown simple. (Keep in mind, the same concepts will apply to anything you can trademark!)
IF YOU KNOW YOUR NAME IS USED BY ANOTHER BRAND
Perhaps you did a quick Google search and spotted it or were trying to grab a social media handle only to find that the brand name was already in use. You searched the USPTO and found that the brand name was already indeed trademarked. Before you allow your motivation to deflate, know that this isn’t a problem! Yes, truly. Think for a moment about Dove Chocolate and Dove Soap. If they can both coexist in the trademarking universe, chances are that your brand name and this other brand you stumbled upon can both claim ownership. If you’re wondering how that can be possible, we can thank the USPTO and their organizational system. Ultimately, the USPTO was founded to prevent consumer confusion, realizing that the average American consumer didn’t want to be hoodwinked by copycat brands. What the USPTO also realized was that the average American consumer was smart enough to discern that Dove Chocolate was not the same product as Dove Soap, so they instituted categories within trademarking. A trademark must live within a specific category (or multiple, defined categories) in order to be successful. This means that even if another brand is using the name you want to use, as long as they are not your direct competition, you have a strong chance of a successful trademark.
IF YOU’RE CONCERNED ABOUT THE POSSIBILITY OF YOUR NAME ALREADY BEING TRADEMARKED
If this weighs on you but you can’t find any direct evidence online, know that the chances of your brand name already being trademarked are slim and you have a great chance of being successful.
Ultimately, peace of mind lies in working with an expert. To truly have a detailed analysis of your trademark and how the USPTO will view it, you’re best served in working with attorneys who specialize in trademark law. Not only can we do all the deep-dive research for you, but we can also prepare your application from the perspective of solid legal advice based on our numerous conversations with the USPTO during the hundreds of trademarks we’ve handled. Ready to talk about what it would look like if we worked together? Book your complimentary consult here.
This post is for general education and does not initiate an attorney-client relationship with us. We always recommend consulting a trademark attorney for your brand’s specific needs.