Re: Can we trademark legally?

As a general rule, you can't trademark a name that's already in common use. It sounds like the business name is now in use, so it's too late to trademark it. To be safe, though, you should talk to a patent and trademark lawyer and discuss your entire situation. There are many exceptions to the "first use" rule.

Re: Can we trademark legally?

The name of a restaurant currently in existence may qualify for federal trademark or service mark registration with the US Patent & Trademark Office (USPTO). A simple definition is that a service mark identifies a source of services and a trademark identifies a source of goods or products.

Generally, the Sales-Agreement, signed by your husband and his former business partner, will dictate whether the specific name and good-will value (reputation) of the restaurant were assets that were transferred along with the ownership interests in the restaurant. Even if ownership of the restaurant name is not specifically discussed in the Sales-Agreement, there may be a strong presumption that the restaurant’s name is included among the assets that were transferred. The main hurdle to overcome is: If your former partner does now possess the right to the restaurant name, are they willing to consider relinquishment of those rights (such as by assignment of name to you)?

I will be glad to discuss the pitfalls and possibilities of acquiring a federal trademark for a former business in which you were a founding partner.

THE COMMENTS CONTAINED HEREIN ARE FOR GENERAL INFORMATIONAL USE ONLY- NOT AS LEGAL OPINION. NO ATTORNEY/CLIENT RELATIONSHIP HAS BEEN ESTABLISHED.

Re: Can we trademark legally?

Your husband sold his portion of business - this is the first important fact. What an attorney would need to determine is what your husband sold, and did he retain any rights or responsibilities.

If your husband did not reserve the rights under the contract to control the manner in which the trademark is used, he has no rights whatsoever to dictate now how the trademark is used. It does not matter at all whether either of the users/owners has registered the trademark for this analysis.

What you are trying to do now is assert rights after the fact. If you had an experienced attorney before the fact, and you/your husband wanted to retain rights to the trademark and license it back to the business, that could be done and is regularly done.

It all depends on the language of the contract now. I hope you didn't buy that contract on the internet, for your sake.