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You’ve put time into building your brand—choosing a name, designing a logo, and maybe even launching your website. It’s only after this that you discover another business has already registered that same trademark. This can be frustrating and raise many questions. Does that mean you have to start over? What steps should you take? Trademark issues like this happen more often than many people think, and the outcome depends on timing, usage, and how the law applies to your specific situation.
A trademark is not just a name or logo; it is how customers recognize your business in the marketplace. It can be a word, phrase, symbol, or even a design that tells people, “this product or service comes from us.”
Registering a trademark with the U.S. Patent and Trademark Office (USPTO) gives you countrywide rights and the ability to stop others from using a confusingly similar mark. So, what happens if someone else beats you on the registration line?
There are several steps you can take when someone registers your trademark first, including the following:
Before assuming the worst, take a closer look at the other business’s trademark. Trademarks are registered under specific “classes” of goods or services. Two businesses can sometimes use the same name if they operate in completely different industries.
Not every trademark you find is fully registered. Some are still pending. If the other business has only filed an application, you may still have room to act. You could consider filing your own application to establish your position if the other business’s application falls through—or monitor the status of that application and determine whether approval occurs.
In the U.S., trademark law generally follows a “first-to-use” principle, unlike many other countries, which apply a “first-to-file” principle.
That means that if you were already using the name in commerce before the other business filed its application, you may have common law rights. These rights can allow you to continue using the name in the geographic area where you have built recognition. To support this, you will need proof such as dated marketing materials, sales records, product labels, or website history.
If the other party’s trademark is still pending, you may be able to file a Notice of Opposition with the USPTO. This is a formal challenge stating that the other party’s mark should not be registered because it conflicts with your existing rights. Having a trademark attorney guide you through this step is critical to increasing your chances of success.
In some cases, you may need to rebrand—especially where the other business has a valid earlier registration and operates in the same space. While it is not ideal, rebranding can help avoid costly trademark litigation over trademark infringement down the line.
For more information, contact the experienced Trademark Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.
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