Legal Question in Business Law in Massachusetts

I had an idea for a t-shirt company, and to my dismay I found that a group of kids had already started to make t-shirts with the name I wanted to use. However I do not believe that they are a legitimate company and are just selling them out of their houses. So does this not count as use in commerce because they are not paying taxes and can I start a legitimate business using the same name and trademark it?

Asked on 3/26/11, 10:37 am

3 Answers from Attorneys

Kevin B. Murphy Franchise Foundations, APC

As a Franchise Attorney familiar with trademarks, I can say this. At the very least, the group of kids have established common law trademark rights. Whether they have a legitimate company or not doesn't affect these rights. A bigger concern for you is their geographic scope. If it's only local, then another user can potentially start a competing use outside their geographic scope and begin establishing rights that ultimately could box them in. This is not a do-it-yourself project. Consult with a good trademark or franchise attorney for specific advice.

Mr. Franchise - Kevin B. Murphy, B.S., M.B.A., J.D.

Franchise Foundations, a Professional Corporation

Read more
Answered on 3/26/11, 12:25 pm

The kids have a established use in commerce. However, trademarking a name is not so much the word as the design. There may be a way to create a viable trademark without having to defend it against the children. If you want to discuss this further please feel free to contact me without obligation.

Read more
Answered on 3/26/11, 1:10 pm
Lawrence Graves Coolidge & Graves PLLC

Sorry, both you and Mr. Roth have it wrong, Mr. Murphy is correct -- you need to consult a trademark lawyer on the availability of the name, the strength of the name as a mark, and the manner in which it is used already versus the way you want to use it. Best wishes,


Read more
Answered on 3/27/11, 4:57 am

Related Questions & Answers

More Business Law questions and answers in Massachusetts