What If My Business or Product Name is Already Being Used?
Intellectual property issues in selecting a name in PennsylvaniaBy S.M. Oliva | Last updated on January 27, 2023
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- Is your name already registered by another business with the Commonwealth of Pennsylvania?
- Is your name already protected by a federal trademark?
Trademarks and Willful InfringementMany fictitious names and trademarks can be registered and enforced at the federal level under the unfair competition statute. A registered trademark (or service mark) is any combination of words, phrases, symbols, or designs that identify a particular product or service, respectively. Once properly registered with the U.S. Patent and Trademark Office (USPTO), a trademark becomes the presumptive legal property of the holder. In other words, say our hypothetical Jane Smith decided to call her business “Apple Computer Services” because she really likes to eat apples. Obviously, this would infringe on the trademark of another well-known computer company. This company could not only stop Jane from using that name, it could also sue her for “willful infringement” of its trademark and recover damages in court. Note that willful infringement does not mean you intended to use someone else’s business name that already exists. If you simply pick a name and never bother to do a name search to check if it is under trademark protection, you can still be held liable for trademark infringement. As is often the case with the law, ignorance is no excuse. “There are so many different situations,” Pokotilow says. “Is the business owner using the name on the same goods or services as the other company? Is it being done in a different part of the country and there’s no U.S. registration? If it’s only being used locally, the business owner may be able to continue to use the same mark and wouldn’t infringe on someone who’s also using it locally in a different area. If the competitor’s name is used nationally and has a registration that preceded your first use, the client wouldn’t be able to use it.” If it’s a situation of similarity and not exact same names, the question becomes whether there’s potential for confusion. Contact a law firm and seek legal advice. “There is nothing you need an attorney more than for trademark because of all the variations,” Pokotilow adds. “As soon as you have an idea for a business and you intend to use any name, you should check with a trademark attorney.” For more information on this area of law, see our overviews of intellectual property and trademarks.
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