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Can you use a company name that has been trademarked?

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2007-04-05 21:58:38
2007-04-05 21:58:38

You may be able to if your use of the name doesn't diminish in any way the value of the trademark, but if there is any way in which your use of the name might cause confusion for the customers of the trademark holder, they will probably fight your use of the name. Bottom Line: Discuss your plans with a business-savvy attorney If by "use the name" you mean open another company using the same (or similar) name, the quick answer is "possibly", but you need to do a little research first. This is called a "clearance" search. :Note: This presumes you do not already have superior rights to use the trademarked name, say, if you were using it well before the other company came along. A company name, by itself, cannot be trademarked -- it has to be associated with some specific product or service before it becomes a "trademark." If the name you're interested belongs to a company that sells things completely unrelated to yours, or only in a very distant place from you, you might be okay. But not necessarily, depending upon how "famous" the name is already. You could not, for example, market a hockey puck called "American Express" without having a chat with their lawyers. Similarly, Hostess brand hockey pucks might not fly very far. This is because those brands' owners can prevent "blurring" and "tarnishing" of their brands by others who may want to take advantage of pre-existing brand recognition, even if nobody is confused about who makes the product. You might do a "Little Wendy's Shoe Polish" product, but not a "Wendy's Drive-In Shoe Shine," because the latter mimics the existing fast food chain. A company with a valuable trademark will often register its rights (in a state or federal registry) and you can start by researching the scope of protection they claim. On the other hand, they are not required to register a brand, so there may be other things they sell that are not included in any of the registrations. If you are going to put a lot of money into the marketing of your company, you should budget a few thousand dollars for an intellectual property attorney to "clear" the use of the trademark before you proceed. A large US company might pay $50,000 or more in worldwide clearance search and opinions, only to find someone else already has used a similar brand in a similar way. To avoid trouble, they start over with another name. Once you know what they claim, you can compare your product/service with theirs, look at the marketing channels you both use, look at both your customer bases, and other factors. If there is ANY overlap, you should be very careful. It would be a shame to devote a lot of effort to build up a brand only to lose it later and have to start over with a safer one. If by "use a company name", you mean "refer to a company name" that has been trademarked, e.g., use it for comparison, or to link to their website, or say you live next door to it, the rules are different. You may legally "use" the name XYZ in your own materials (say, an eBay advertisement) if all you're saying is that the product was made by XYZ (click here for their product info), or even that the thing you're selling is compatible with XYZ. Similarly, in advertising your own products, you could say that yours is "a working replacement for XYZ" or "better than XYZ" if you have proof that the statement is true. You can say, "we hired all the former XYZ engineers before the company collapsed", as long as it's true. However, you may not use a company name that is trademarked if all you're doing is coat-tailing on the fame of its trademark, such as "Our Disney souvenirs are cheaper than the licensed ones!" Many large companies also strongly object to your use of their brand names in meta-tags or hidden text on websites, let alone using their proprietary graphics as "links" to their websites without a license. They have the right to control the source and quality of any affiliate, and to prevent others from falsely claiming an affiliation. Even under so-called "fair use" of a product trademark, you may still get sued for mis-use and it will cost you thousands of dollars in attorneys' fees even to reach a settlement.

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In the realm of business, a company’s brand is paramount. It’s how the company is known to customers and investors, and it distinguishes the company from all the other companies out there trying to compete in the marketplace. And so, the name itself is an supremely valuable commodity. In turn, like all valuable commodities, you want to protect your name, and make sure that it continues to signify the excellence your company embodies. Our legal system provides the perfect tool for this protection: the trademark. Trademarking your name is essential. Here’s how to do it.- Step One: Can it be trademarked?For you to trademark your name, you need to make sure that it is the name you use to signify your particular company and its products. The name must be your company’s face that it shows the world. The name needs to be displayed either on the products you sell, or during the sale and advertising of your services.- Step Two: Make sure the name is yoursOnce you’ve determined your name can be trademarked, do a trademark search to make sure that the name isn’t already trademarked by someone else. If you’re unlucky, and someone has already trademarked your name, you’ll have to get a new one quickly.- Step Three: The paper trailSo if the name is yours and yours alone, it’s time to fill out the requisite paperwork. You can do this easily on the Internet, or you can get hardcopies of the application from the Trademark Assistance Office.Then just sit back and wait for a response. The application will be read by the USPTO (United States Patent and Trademark Office), and if everything is copacetic, you’ll be the one and only company allowed to use your name. After that, it’s time to go out and build your brand!

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