If someone is using a name but have not trademarked it or has an official business, can I apply to trademark it ?
2 attorney answers
The prior answer is correct, the prior user likely acquired and holds common law trademark rights. First, see if you can find an available trademark. If you really just love this name, seek the advice of an attorney to discuss your options based on all relevant facts of the matter.
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It's not a "conflict of interest," which is when one person has two conflicting claims, but it is a conflict, and that conflict is trademark infringement.
This artist has acquired "common law" trademark rights by their use if they're offering their art for sale on their Facebook page, even without formal "registration" rights.
Selecting a viable and available trademark isn't a DIY job; hire your own counsel before doing this.
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