Learn more about what to do if your business name is already trademarked.
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Have you wondered if the name you intend to use for your business is already trademarked? Or if you can trademark the product or service driving your new business idea? Properly trademarking your company’s product or service is as important to your business as the development of the product or service itself.
A quick note before we get started: Remember that a trademark differs from a copyright or patent. Patents prevent others from producing or selling a certain invention. Copyrights prevent others from plagiarizing original works of authorship. By contrast, trademarks protect the symbols, phrases, words, logos, or other means by which goods or services are identified or distinguished from competitors. (For more, see: Copyright vs. Trademark: What You Need to Know.)
Your company’s trademark is not so much about the ownership of a given set of words, colors, or images but rather the overall brand conveyed to your customers. The trademark is how your customers identify your goods and services, so you want to create the strongest, most original one you can. In the case of trademarks already claimed, this can sometimes just be a matter of figuring out how best to distinguish your trademark from others like it.
People can claim a trademark before they actually register it. In fact, the more they make use of the mark, the greater the likelihood that the U.S. Patent and Trademark Office (USPTO) will approve it. Trademark rights come much more from usage than from the actual filing for protection. This article will walk you through how to apply for a trademark that already exists and provide tips for navigating your trademarking journey smoothly.
The USPTO reviews applications for trademark registration at the federal level. While you can apply for trademark protection for almost anything, the USPTO must approve it based on the trademark requirements outlined in the Lanham Act, the primary federal statute governing U.S. trademark law.
Before you apply, conduct a thorough trademark search to ensure your mark isn’t already in use:
New for 2025: As of January 18, 2025, all USPTO trademark applications must be submitted through the Trademark Center, replacing the older TEAS system.
Grounds for denial of a trademark can range between many extremes. For example, trademarks can be denied if they are considered primarily geographically deceptive. If you were to try to register a trademark for the phrase “Boston’s Best,” but your company and its factory are based in Tucson, Arizona, that phrase suggests a misleading geographic area. Other reasons trademarks may be denied include:
As freelancing and consulting become more popular and more people focus on flexible work environments, it’s more important than ever to trademark items such as your logo or brand image. If you’re starting a boutique finance firm, you need to attract customers and have them remember your company amid the sea of other businesses like your own.
No matter your industry, perform a trademark search on existing trademarks for logos, associated imagery, and company taglines, as this will help ensure that your brand sticks out from the crowd in the best way.
Recommended: Do I need to trademark my LLC name?
If you start the trademark application process and discover that the trademark you want is already in use, don’t assume you have to give up immediately. Here are four steps to take before making a final decision:
Trademarks are classified into 45 different classes based on the type of goods or services they cover. If a similar trademark exists, check whether it’s in the same class as your business.
The USPTO evaluates the “likelihood of confusion” when deciding whether to approve a trademark application. If two trademarks serve the same industry and target market, the likelihood of confusion is higher.
Examples of trademarks the Trademark Trial and Appeal Board (TTAB) found too similar to coexist:
To conduct a search, use the Trademark Electronic Search System (TESS) and filter by classification or design code to find existing trademarks similar to yours.
Business owners can, and very often do, use trademarks before they have formally registered them. They can then claim that trademark after the fact by proving they’ve used it for whatever duration since. In the trademark tongue, this is called claiming “first use.” Your rights to a given trademark start from the date of your first use, and you don’t have to have filed at that time for your trademark to be protected.
There are two types of first-use dates when proving your exclusive rights to an existing trademark. The “date of first use in commerce” refers to the first time the mark was used in conjunction with a sale of related goods or services. The “date of first use anywhere” refers to the first time this particular mark was used in any capacity relevant to your business.
When establishing first use, you’ll be asked to provide supporting documentation in the form of what the USPTO calls “specimens.” Specimens may be anything from a photograph of your company’s logo or tag on the goods to the packaging of your goods with the trademark on the packaging.
Digitally altered photographs are not admissible as specimens; neither are items such as invoices or letterhead. Check these basic facts about trademarks to ensure that you can provide the right specimens for claiming your trademark.
You can take several approaches if you think you own the right to a trademark already in use. Because trademark owners must supply the USPTO with consistent, updated proof in the form of a Section 8 Declaration of the trademark utilized for active commerce, you might start by checking when that trademark’s last statement of use was obtained.
Section 8 Declarations are expected after the fifth anniversary of your mark’s registration but before the sixth. Trademarks not updated are considered abandoned and up for grabs after that sixth anniversary.
Trademarks have to be renewed every 10 years, so this means that if you find that the trademark you want has been (or will be abandoned) but is still in the official ownership of another business, you will have two options. You can pay to transfer a trademark or work with the current owner to license some or all of the rights to it.
Trademark infringement is a serious legal matter, and business owners sometimes pursue legal action to assert their rights. If you believe you have a stronger claim to a trademark, you may consider the following legal options:
Just as with the establishment of first use, you’ll need to provide valid specimens proving your right to legal protections. Given the complexity of these legal challenges, it’s advisable to consult a U.S.-licensed trademark attorney before proceeding.
Trademarking can be a confusing process for many because they protect such a peculiar form of intellectual property. Make sure you consult with trademark professionals before you move forward in any trademark acquisition process.
Also related: When is a Trademark Needed?
Can you give up rights to a trademark?
Trademark transfers can be tricky. If you don’t want to utilize your trademark anymore, you can choose not to renew it at the mandatory 10-year increments required to keep a trademark active. It’s always best to consult with a trademark attorney to obtain proper legal advice on matters of shared or transferred trademarks rather than to risk infringement or illegal use.
How long is a trademark protected?
Trademarks are valid for as long as they are actively used. Renewals for federally registered trademarks are required every 10 years, and in that renewal process is a formal request for proof of use. Trademarks not properly renewed with USPTO-approved proof are no longer considered “in use” and can be vulnerable to claims by other companies.
What is a dead trademark?
A dead trademark refers to a mark whose registration was abandoned before it was issued. It can also refer to one for which no declaration of continued use was properly filed with the USPTO.
Disclaimer: The content on this page is for information purposes only and does not constitute legal, tax, or accounting advice. If you have specific questions about any of these topics, seek the counsel of a licensed professional.
Written by Team ZenBusiness
ZenBusiness has helped people start, run, and grow over 800,000 dream companies. The editorial team at ZenBusiness has over 20 years of collective small business publishing experience and is composed of business formation experts who are dedicated to empowering and educating entrepreneurs about owning a company.
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