is this mark available for use?
How Can I Tell If Someone Already Has the Rights to the Mark?
If you have a brand name in mind and want to start using it, the first thing you need to think about is whether someone has already claimed that mark, meaning if they registered that trademark, or have been using it in commerce first.
You don’t want to settle on a mark that is already being used by another business or brand.
So how can you know whether another business has rights to that mark?
You need to retain a trademark attorney to run a trademark search for you. When you do a search, you get access to essential information such as who has rights to that particular name, in what field, and in what capacity. Learn more about the different search and their importance here.
If the search does not turn up any results that would be considered red flags, then you can start using the name for your brand in commerce.
Be advised, however, nothing in the law is 100% guaranteed. Even if the search results did not turn up any red flags, it’s possible, though not likely, that some record slipped through the cracks and did not show up when the search was done.
If the Mark Is Registered, Does That Mean I Can’t Use It?
An obvious question that comes up a lot is if the name that you want is already registered, does that mean you can’t use it at all?
The answer is “it depends…”
Trademarks are field-specific and geographic location-specific. You have to be able to analyze the registered or pending trademark to see for which services or products it is registered. It’s possible to have the same trademark if they are used in unrelated fields, products, or services. For example, Dove chocolate vs. Dove soap; Delta Airlines vs. Delta Faucets, etc.
If your use or intended use for the mark is in an unrelated field for unrelated products or services from the pending or registered mark, then most of the time you should be able to use that mark without problems.
You do need a search and analysis done by an attorney to determine this for sure. Contact me to schedule your free call with me.
However, if your mark is in the same or similar field for the same or similar products or services, this is a good indication that you should not use that trademark for your business purposes. By doing so, you’re putting your business in danger of receiving cease and desist letter, and possibly a request for damages.