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

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 ?

I meant to say "Linsanity"

Attorney Answers 6


  1. Was Lin using that?

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


  2. 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 purely educational purposes. We are not aware of your specific circumstances and recommend that you hire an attorney to analyze the specifics of your case and applicable law and advise you as to your rights and any time limits that may apply to you within which you must exercise your rights.


  3. 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.


  4. 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. 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 informational reference, does not – and shall not be considered to – constitute legal or professional advice. The reader should not consider such information to be an invitation for an attorney-client relationship, should neither act nor rely on such information, and should always seek the advice of competent counsel licensed in the reader's state. Attorneys with the For Purpose Law Group are generally licensed to practice law only in the State of California. The ability of the reader to access this website in another jurisdiction does not constitute the practice of law outside of California, or a representation that members of the For Purpose Law Group are licensed to practice in any other jurisdiction. This site is not intended to, nor does it establish an attorney / client relationship between you and this office.


  6. 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

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