Is trademarking a business name important if you are the first to use that name?

Asked over 1 year ago - Santa Clara, CA

If so , why is it ? Doesn't the law already protect the name if you are the first to use it ? Also , if I trademark a name , but somebody registered that name already for a social media account , can I ask to have it ? An obvious example would be Insanity . In people registered that name on different social media outlets but since that term has been trademarked , does Lin have the rights to that account ?

Additional information

I meant to say "Linsanity"

Attorney answers (6)

  1. Scott Richard Kaufman

    Contributor Level 20

    1

    Lawyer agrees

    Answered . Was Lin using that?

    In the end, folks who sit on their rights tend to lose them...

  2. James Carl Eschen III

    Contributor Level 16

    1

    Lawyer agrees

    Answered . By "trademarking the name," I assume you mean registering the trademark. You are correct that the law protects trademarks even if they are not registered.

    Registering is helpful for at least two reasons. First, it provides constructive notice of your right to use the trademark. No one who uses a confusingly similar mark can claim an innocent mistake.

    Second, in a lawsuit against an infringer, you can collect attorney's fees.

  3. G. Todd Winter

    Contributor Level 6

    1

    Lawyer agrees

    Answered . Although you obtain common law trademark protection the moment you create and use a mark to promote goods or services in the stream of commerce, you cannot enforce (prevent) others from using it until you first register it with the USPTO. You will also have the burden of proof to show that you were, in fact, using that trademark since a certain date. If, on the other hand, you seek trademark protection and obtain full registration of your mark, the burden of proof shifts and an opposing party would have to prove you don't own the mark.

    As for the remainder of your question, you also must remember that trademarks are specific to particular goods and/or services. So by simply registering a trademark in one class of goods, for example 025 for apparel, does not by itself mean you can prevent others from using that same brand for a totally different good or service.

    We are WINTER LLP. Changing the way legal gets done. Visit us for flat fee trademark packages at www.TrademarkLawAttorneys.com

  4. Gary Stephen Brown

    Contributor Level 10

    Answered . You can find some useful information on the internet. For example, go to http://www.trademark.iastate.edu/basics/.

    The advice provided is in good faith but not a guaranty of accuracy under all circumstances.
  5. May Lynn Harris

    Contributor Level 10

    Answered . The US is unique in that rights to a "mark" or "name" is typically the property of the person or company that was "first to use" that mark in commerce or a specific trade (codified in the Lanham Act legislation). Other countries utilize a "first to register" system, however, so when you start thinking of protections offered outside the US (internet included) registration starts to become more and more necessary to adequately protect your mark.

    I don't truly understand your specific "Linsanity" question, or what question you're hoping to have answered regarding "Lin." More information would be helpful.

    May L. Harris, J.D., M.A.
    For Purpose Law Group, a PLC

    The information that has been provided on this website, including information contained in any link or... more
  6. Edward David Smith

    Contributor Level 6

    Answered . If you want to trademark your name it may be possible if you are using it for goods and services that are not covered by prior users.

    We do trademarks at info@edslaw.net.

    No attorney client relationship is established by our answering your question and these answers are meant for... more

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