# My company name being used by similar business...



## BSApparel (Nov 6, 2007)

Quick question - I realized that there is a screen printing company in the midwest with basically the same name as mine, except I have "Apparel" at the end of my name. I'm selling shirts retail and online but I'm not a screen printer - am I still infringing on his name?

FYI, Neither his nor my name are trademarked according to the trademark office, if I trademark my name would that protect me, or should I change the business name before I launch the company?

Thanks!


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## SeasonEnds (Sep 9, 2007)

I had the same question also, did some research and this is basically what I came up with. I am no expert, but here goes...

Does that screen printer sell shirts online also? If he does, you might be treading on thin ice. If he doesn't then I would say that you are ok. Ask yourself this.. when you use the name, would it confuse customers about where the shirt came from? If so, then be careful. 

Anyways, you provide a product so you should trademark your business name. If all he does is screenprint, then he is providing a service (depending on how and what he is doing with the shirts). So, from what I understand, it's likely that he would get a servicemark and not a trademark. 

If you ever get into a name dispute, it is usually decided by who had the trademark first. That is not always the case though. If you he can prove that he had substantial sales before you did, while providing the same product, you might be out of luck. 

Personally, I would just save myself the hassle and come up with something else. I guess it all boils down to how established you are.


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## karlking85 (Sep 26, 2007)

I agree with most of what Eric said, but I think if I were deadset on the name, the best advice I can give is consult with a trademark attorney. If you establish under that name and your business takes off, it would have been worth that initial investment.


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## TripleT (Apr 29, 2007)

Well you better check with an attorney to get a legal opinion - but many companies have the same name. You're not in the same kind of business (related, but not the same), I don't see it as a problem - but again, check with an attorney to make sure.


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## karlking85 (Sep 26, 2007)

The name I am considering going with was registered with a fashion company in the 80's in California, but was abandoned within the first year of use. I was not aware of the company until I did a trademark search on the name and found it. I have yet to see a current company using the name, and I KNOW that it is not registered with the USPTO, so I am still planning on going with it.


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## paulo (Dec 13, 2006)

BSApparel said:


> Quick question - I realized that there is a screen printing company in the midwest with basically the same name as mine, except I have "Apparel" at the end of my name. I'm selling shirts retail and online but I'm not a screen printer - am I still infringing on his name?
> 
> FYI, Neither his nor my name are trademarked according to the trademark office, if I trademark my name would that protect me, or should I change the business name before I launch the company?
> 
> Thanks!


Trademarking the name now would not really protect you since he has First Use, unless you can prove that you came up with the name first.


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## Unik Ink (Nov 21, 2006)

Yeah, I had a conversation with my copyright attorney about a week ago about a clothing line that I wanted to launch. Similar but not exact names were used in the clothing industry, and he said that I might have a problem in the future. Generic words like clothing, apparel, etc. do not factor in much to the trademarked name. I wanted to do "Sinners & Saints Apparel", and "Saints 'n Sinners Clothing" is trademarked. The words are even reversed, and my logo didn't look anything like theirs, but it was still an issue.


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## BSApparel (Nov 6, 2007)

Thanks guys, I'll see what I want to do - might be easier to just change the name at this point (though it's still going to be a pain in the ***)


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## billy bob (Dec 12, 2007)

I had the same problem,at 17 i came up with live evil,from a picture i was drawing,a guy in looking at him self in a mirror with the word live on his chest,and in the mirror the word evil was written,i come to realize,a rock group,before my time had an album with the same name,when i finally turned the name into a clothing company,after registering it in that name (it goes by province in canada) i get ontario type thing,I then noticed on the net looking for a domain,there was live evil clothing,here is my point,that liveevil had one mabey two shirts,and they wernt even nice,I promoted my self better,i had the line develope a lot further,and may the better line win,up to you though


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## 2Dye4 (Jan 9, 2006)

Question...

If a trademark is said to be "abandoned" and "dead" is it then
available for filing?

Thanks,

Jo


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## BSApparel (Nov 6, 2007)

I believe so - if you go to the trademark office and search for your name you can see if you're able to register it or not.

Thanks for the help everyone.


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## Comin'OutSwingin (Oct 28, 2005)

2Dye4 said:


> Question...
> 
> If a trademark is said to be "abandoned" and "dead" is it then
> available for filing?
> ...


No, not necessarily. 

A "live" mark means that the person has done what is necessary to register the mark, and that the mark is indeed registered.

A "dead" mark could mean that the registration has just lapsed. It doesn't mean that they aren't still using the mark.

They can still use the mark without the registration, and you are still not free to use it just because it's "dead".

Likewise, if the mark is "abandoned" it doesn't mean that it is free to use to anyone that wants it. It could just mean that no one responded to the USPTO when requested. They still may have the right to use the mark.

You need to THOROUGHLY research any mark you come across as "dead" or "abandoned".


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## T-BOT (Jul 24, 2006)

paulo said:


> Trademarking the name now would not really protect you since he has First Use, unless you can prove that you came up with the name first.


not only that but i read somewhere they may let it ride until you're making money and then act. Unless you let them know yourself that you are using the same name at some point, or they become publicly aware of it in writting somewhere, they may just take a back seat and wait. 

I read this somewhere, not sure if it is true or not. 



:


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## paulo (Dec 13, 2006)

BSApparel said:


> Thanks guys, I'll see what I want to do - might be easier to just change the name at this point (though it's still going to be a pain in the ***)


You can keep your company name as your legal entity, but you may want to file a new FBN, and do everything else under that.


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## paulo (Dec 13, 2006)

T-BOT said:


> not only that but i read somewhere they may let it ride until you're making money and then act. Unless you let them know yourself that you are using the same name at some point, or they become publicly aware of it in writting somewhere, they may just take a back seat and wait.
> 
> I read this somewhere, not sure if it is true or not.
> :


If there is no trademark, they would have to show that damage has been made.

Disclaimer...I am not a lawyer.  I just deal with a lot of IP stuff, and like Lucy read.


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## BSApparel (Nov 6, 2007)

paulo said:


> You can keep your company name as your legal entity, but you may want to file a new FBN, and do everything else under that.


Is that like a DBA?


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## paulo (Dec 13, 2006)

BSApparel said:


> Is that like a DBA?


Yes.

Fictitious Business Name = Doing Business As


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## BSApparel (Nov 6, 2007)

Might be an option, thanks!


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## paulo (Dec 13, 2006)

BSApparel said:


> Might be an option, thanks!



Yeah a lot business entities and business do that.


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## Wombat (Sep 5, 2007)

Unik Ink said:


> Yeah, I had a conversation with my copyright attorney about a week ago about a clothing line that I wanted to launch. Similar but not exact names were used in the clothing industry, and he said that I might have a problem in the future. Generic words like clothing, apparel, etc. do not factor in much to the trademarked name. I wanted to do "Sinners & Saints Apparel", and "Saints 'n Sinners Clothing" is trademarked. The words are even reversed, and my logo didn't look anything like theirs, but it was still an issue.


 
Did you really have to speak to a lawyer to see if you would have a problem with this name?


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## SketchBox (Jan 4, 2008)

if its a corporation I would change the name, they have all the legal rights in the buisness world, in Canada anyway I dont know about the US.


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