A trademark is a symbol, phrase, or word that is used to identify a product or service for sale. Most of the things you buy or pay money for have a trademark. You use those trademarks to identify those products. Registering a trademark with the United States Patent and Trademark Office (USPTO) will allow you to use your trademark and deter others from using your mark.
But what if someone else is using the trademark you want, but they haven’t officially registered it with the government? Can you still use it? While a trademark attorney can give you a more specific answer for your specific situation, the answer is…maybe.
Common Law trademarks are trademarks that are used in consumer/business interactions that have not been registered either on a US State or Federal register.
Here are questions to ask when determining if you can use the same trademark:
 

• Is your logo or business substantially different from the other company? Trademarks are meant to keep the public from confusing one business, product, or service with another. While trademarks may not all be 100% unique, as long as they can keep the public from being confused, they may be proper trademarks.
• How long has this company been using the brand? If a company has been using an unregistered trademark for years before you hit the scene, then you should not use it, especially if this trademark is well known, because it may lead the public to think that your product or service is affiliated with the other company’s trademark.

• Where has this company been using the brand? If it is only used in one town you might still be able to use it. Generally, common law trademarks are enforceable only where the mark has come to be identified with the company’s goods or services, within a territory often referred to as the “Zone of Actual Goodwill.” Of course, today with the internet, this Zone of Goodwill has been greatly expanded in most cases.
• Are you willing to fight for this trademark? Like in the example above, trademark disputes are solved through litigation, and trademark disputes can be long and costly. If you’re thinking to use a similar trademark as another company, it may be a better idea to simply find another trademark rather than risk losing a civil suit and having to change it anyway.

 
Ultimately, an intellectual property attorney can help you decide whether it’s better to simply find a new trademark or use the one you have. He or she can explain the rules and help you determine if you should stick with the trademark you love or go back to the drawing board.
Our intellectual property attorneys can also help you determine the best path forward.  To contact the Law Office of Jason H. Rosenblum, PLLC simply call (888) 666-0062.
 
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney.
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