I want to start a company under a certain name, but I found a small family run company on the other side of the country with the same name and in the same product category. I did a trademark search and found that there is no trademark for that name filed. Would it be legal to use that name if there is no trademark for it filed even though a company is already using it?
1 Answer from Attorneys
Yes, it is legal........but possibly unwise. Let me explain. First, it isn't at all uncommon for businesses in different trading areas to have the same name. For example, there's probably a Joe's Bar or Jimmy's Grocery in half a dozen different cities spread out across the country. They don't compete with each other, and they probably don't even know about each other, nor do their customers, their banks, or their suppliers. And, there's nothing "illegal" about the situation, and none of them can (successfully) sue the others. Now, however, suppose one such business starts to "go national" by, for example, advertising in magazines or going on the Internet. Possibilities of confusion begin to arise. When confusion expands to the point where financial harm is done, there's the possibility, and then the likelihood, of a successful lawsuit ....... and there are so-called "common-law trademark" rights that don't require registration. So, the bottom line is that if there is some possibility that a business conflict or confusion might arise in the future, you should consider registering the trade name........also keep in mind that not every name can be registered; it needs to be sufficiently distinctive to be register-able.