If someone is using a name but have not trademarked it or has an official business, can I apply to trademark it ?
I am starting a candle and soap company and want to buy the domain name and register the trademark of my company. I have found there’s a Facebook page with the same name, but he has not trademarked it or have an official business. He is using it as an artist, I would be selling soaps, candles, but I would also like to sell art prints on my website. Is this a conflict of interest?
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.
This answer is provided for informational purposes only, does not constitute legal advice, should not be relied upon as legal advice, and does not create an attorney-client relationship. The response given is not intended to create, nor does it create, an ongoing duty to respond to questions. Actual legal advice can only be provided after completing a comprehensive consultation in which all of the relevant facts are discussed and reviewed. If you believe you may have a legal need, you should seek the counsel of an attorney who can discuss the law as it pertains to the facts of your unique circumstances. To the extent additional or different facts exist, this answer may differ. Attorney is licensed to practice law in the State of Florida.
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.
Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments.