I get this question a lot — and I mean a LOT. While I would absolutely love to give you a ‘yes’ or a ‘no,’ there’s so much nuance behind it — because technically, yes, in some cases, you can trademark a name already in use, but sometimes you can’t (and yea, it kind of sucks).

Hopefully, you’re asking because you’re researching potential brand or product names, and you’re not here because you’ve launched and realized that something (or someone) already exists with your name.

Anyways, you’re here, so let’s talk about it.

Can You Trademark Someone Else’s Business Name?

Yes — but also no. When I said it’s nuanced, I meant it. Honestly, there’s no such thing as a ‘quick’ legal question (which you probably hoped this was), which is why I can’t seem to give you a straight answer — because there isn’t one without all the facts.

First, let’s break down those potential ‘yes’ moments like…

• If they haven’t filed a trademark for the name (but they may still have legal rights to use it)
• There’s no likelihood of confusion with an existing trademark (sight, meaning, sound, etc.)
• It’s in a different class

Trademarks aren’t first to use, first to own — they’re first to file. If someone else’s business name isn’t trademarked and you want to use it (because you have to use it; you can’t just trademark someone else’s name to stash it), you can start the process of getting it trademarked.

This doesn’t mean you’re guaranteed a trademark, though; there could be a reason the business never trademarked its own name, such as the likelihood of confusion with another already filed trademark.

Can Multiple Businesses Trademark the Same Name?

Yes, see above (the third bullet point a little over two paragraphs ago). 

To clarify, multiple businesses can trademark the same name if they’re in a different class. However, this is not guaranteed. Trademark classes are a way for the USPTO to organize the goods or services used in applications (and assessing fees, but more on that another day). 

If your business has no overlap in goods and services — or, at least, how the USPTO classifies your goods and services — there’s potential for your trademark to get approved.

It can be annoying, but not impossible. Consider Dove soap vs. Dove chocolate; both are trademarked and sell two very different things.

What if Your Name is Already Trademarked?

If your name is already trademarked and in the same class as yours, it’s time to consider how attached you are to it (because, nine times out of ten, you’ll want to change it — or have to).

In the best-case scenario, you can continue coexisting, but you’ll never truly ‘expand’ your products and businesses with your name (without a trademark, you don’t technically own it).

In the worst-case scenario, you’ll get a cease-and-desist letter and a request for everything you’ve earned thanks to using their name. Yikes.

How to File for a Trademark

Now that we’ve cleared up any (or most) of your concerns around filing a trademark for a name already in use, you should have a good idea of what (and if) you want to move forward with filing your trademark.

I always recommend working with a trademark attorney to ensure your brand is protected and your trademark is registered — and if your trademark is determined to be high-risk and you decide not to file, we help you find a name you love to use instead.

Ready to protect, scale, and defend your brand? Let’s do it. → Trademark Your Brand.