Can I use the same term as another company is using, if that company did not register the term as a trademark?

Company A -> My company
Company B -> Competitor

Company B uses "Neverdown Hosting" to brand their shared hosting. However, "Neverdown Hosting" isn't registered as a trademark. I am interested to use that name too, but will I get into legal trouble?

While i can't give you legal advise (you should be somewhere else for that) it seems that you investigated if there was a trademark; if not; there will be little legal complications here. Remains the question if it is the right thing to do though. Personally i would refrain from doing so.

Well, I find a term an excellent term for a product, but unfortunately, someone else is using it, but for perhaps marketing purpose. However, it isn't a trademark.

Just get your own name

Deppending where you are a person can make a complaint to the countries Intellectual Property department if the name is similar to another companies or if the name misleads by implying a connection to an existing company name.

Is it illegal? No but it can cause problems.

Well, I find a term an excellent term for a product, but unfortunately, someone else is using it, but for perhaps marketing purpose. However, it isn't a trademark.
That made absolutely no sense.
Just get your own name
I agree. I always try to be as original as possible.

Trade mark it your self and then you will be good to go :P

Can I use the same term as another company is using, if that company did not register the term as a trademark?

Trademarks do not need to be registered to be protected.

See, for example, Microsoft's list of trademarks; you'll see some are registered, some are not:

http://www.microsoft.com/library/toolbar/3.0/trademarks/en-us.mspx

Without officially registering the trademark or service mark you do not really have any official proof. Copywrited materials are a different issue. With a book wrote by an artist that is automatically covered by copyright law for I believe a period of 70 years after their death. At that time, it then becomes public domain.

If the word is non unique for example Hosting Companies Name: Quality Hosting there is not away to trademark or service mark it. They are common words which under U.S. law cannot be trade marked.

I'm not a lawyer, I'm just providing you information based of experience. For example, the word Apple by itself is not trademarketed or a copyright infringement. Apple is only an issue if used in their design or in a contenxts referring to a computer.

In the US, a trademark does not need to be registered. The company can still sue you for trademark infringement.

In the US, a trademark does not need to be registered. The company can still sue you for trademark infringement.

Sure anyone can sue anybody for anything. Someone sued Modanna for playing music and dancing last week. Lawsuites are apart of society; however, the filing for the trademark is what gives you the true legal proof. It is much easier to defend a lawsuit on trademarks if it is registered. If two people got the same idea for a name on the same day, posted it online. Sure you could counter sue each other but there is no real proof. Also, under trademark law, you must defend your trademark. A trademark suite can be thrown out at any instances if there was a case a company did not defend it. It is not cut and dry like your making it out to be.

Also, everday words by themselves have shown not be be really trademarkable. There has to be something done with those words. For example, T-Mobile has trademarketed the color magenta for a color of a cell phone or used in celluar names.

They cannot simply copyright magenta as a whole. Its not possible under U.S. Trademark.

I think in this case the OP has made it clear that the other company is already using the term. That being the case, he would be hard pressed to establish a claim to it. Better to find something else.

I don't see why you can't use it if its not a trademark.

I'd use it if its not a trademark.

I don't see why you can't use it if its not a trademark.

I'd use it if its not a trademark.

Em... because you don't want to start getting lawyers involved?

I don't see why you can't use it if its not a trademark.

I'd use it if its not a trademark.

And the way to find out if i's a trademark is to write to the company using it and ask them.

If they say it's a trademark, you then have to decide what you want to do next. You might be able to negotiate a deal.

Apple did that with the Beatles. (I understand the deal was they could use "Apple" for business purposes not connected to music.)

I think that's illegal, but I'm sure that's unethical business practice, As others said it's better to find another name.

Regards,

It's definitely illegal. In the U.S., a trademark does not have to be filed (though this does provide additional protection). Just by using a name, a company lays its trademark claim. So I'd say don't do it - pick something else.

It's definitely illegal. In the U.S., a trademark does not have to be filed (though this does provide additional protection). Just by using a name, a company lays its trademark claim. So I'd say don't do it - pick something else.

You'd also run into problems with domain name registration.

Technically, they can't do anything (But I would still look at other name options).

That's like me making company abc123 and you making company abc123.

It's just a name, and unless they have legally registered it.

As long as you don't steal anything that's theirs, you should be fine.

*Always consult a attorney about these matters, don't just take my word for it.

i dont think thats ilegal

Sure anyone can sue anybody for anything. Someone sued Modanna for playing music and dancing last week.

The difference here is that there is no law against music and dancing. There are laws regarding trademarks, and in the US, they're not required to be registered. The OP asked if it's legal, not if he can get away with it.

It is much easier to defend a lawsuit on trademarks if it is registered.

Absolutely. Solid proof is good in any kind of lawsuit.

Also, under trademark law, you must defend your trademark.

A great way to do that would be to sue the OP for trademark infringement if he refuses to stop using the mark. :D

If the word is non unique for example Hosting Companies Name: Quality Hosting there is not away to trademark or service mark it. They are common words which under U.S. law cannot be trade marked.
Are you sure about that?
Windows
Office
Word
http://www.microsoft.com/library/toolbar/3.0/trademarks/en-us.mspx

Are you sure about that?
Windows
Office
Word
http://www.microsoft.com/library/too...rks/en-us.mspx

You can listen to all the legal drivel you want, but the word "windows" is not and can not be copyrighted. Nor can Office, or Word Or Apple.

What it comes down to is USAGE of the word in question. And right there on the page you posted it says "Descriptor: operating system". THAT is the ONLY way they have the word windows copyrighted. You can use the word windows to freely describe anything else.

However I do fail to notice the word "word" on that list. Either you are making things up or you failed to notice that the "word" LOGO is trademarked, and not the word "word".

Additionally they do NOT have the word "office" trademarked but have two logo's for microsoft office trademarked.

When referring to a program that opens up "windows" and operates in a similar fashion to Microsoft Windows, then you have a legal issue. When you call your product Lindows (too young to remember that?) then Microsoft will come after you because it is too confusingly similar.

Just like the dozens (hundreds?) of stores called Apple Auto Glass. It's perfectly legal to use Apple in the name because the product isn't competing and there is no way to confuse the two companies together.

You MIGHT be old enough to remember a company in the UK trying to sue everyone who used the word "easy" in their domain name. They still have their garbage up at http://www.easy.com/brand-thieves.html. And by the way they have lost many WIPO decisions on domains they have gone after.

Don't believe the hype, believe in what your lawyer tells you.

You can listen to all the legal drivel you want, but the word "windows" is not and can not be copyrighted. Nor can Office, or Word Or Apple.

What it comes down to is USAGE of the word in question. And right there on the page you posted it says "Descriptor: operating system". THAT is the ONLY way they have the word windows copyrighted. You can use the word windows to freely describe anything else.

However I do fail to notice the word "word" on that list. Either you are making things up or you failed to notice that the "word" LOGO is trademarked, and not the word "word".

Additionally they do NOT have the word "office" trademarked but have two logo's for microsoft office trademarked.

When referring to a program that opens up "windows" and operates in a similar fashion to Microsoft Windows, then you have a legal issue. When you call your product Lindows (too young to remember that?) then Microsoft will come after you because it is too confusingly similar.

Just like the dozens (hundreds?) of stores called Apple Auto Glass. It's perfectly legal to use Apple in the name because the product isn't competing and there is no way to confuse the two companies together.

You MIGHT be old enough to remember a company in the UK trying to sue everyone who used the word "easy" in their domain name. They still have their garbage up at http://www.easy.com/brand-thieves.html. And by the way they have lost many WIPO decisions on domains they have gone after.

Don't believe the hype, believe in what your lawyer tells you.
First, thanks for the informative post, I had no idea about the "Descriptor" thing. Will keep that in my mind.

Second, relax! I am not trying to make things up. It was just a question out of curiosity, and the Word came just out of my memory, falsely thought that it was a trademark too, but obviously my memory didn't serve me well in this particular case.

Again, thank you for the info ;)

but the word "windows" is not and can not be copyrighted. Nor can Office, or Word Or Apple.

If you meant copyright, that's true. If you meant trademark, that's not true.

Virtually any word can become a trademark. Shell, Tide and Head and Shoulders are so-called generic or dictionary words for the mollusk, the waves and one who's above the rest, yet you still see people loading up gas at Shell, using Tide to wash their clothes, or even clean their hair with Head and Shoulders.

If anything, a common word can't be used as a trademark for its descriptive meaning. But it can become one if used in its distinctive sense or outside its dictionary meaning or so, like the ones I mentioned above.

As someone posted earlier, one doesn't need to register for a trademark especially in the U.S. and U.K. They need to demonstrate a "common law trademark" use, although having a registered one has more benefits common law users don't have.

I won't go into detail how one shows a common law trademark use as that can vary among jurisdictions that recognize it. Needless to say, the big question here is is the party in question using the term or so as a trademark.

Like one very experienced lawyer I know would give as an (one of my fave) analogy, my dog is stil a dog even if it's not licensed as some cities and states require. And it can still bite your butt whether it's registered or not.

Speaking of office as a trademark, go to uspto.gov and look up registration number 3256616. That's just an example, of course, but goes to show a common word can indeed be used as a mark as long as it doesn't create what's called likelihood of confusion.

Likelihood of confusion is where domain-trademark disputes boil down to. And that pretty much depends on who one's potentially dealing with.

And if one will listen only to their lawyer, that lawyer had better be a damn good one. Companies like Microsoft have among the best in the business.

In my honest opinion...i believe it would be illegal to copy another name. If you think about it, when you go to register a business name, you cant register it twice!!! That is to prevent any mix u or misconceptions between the two companies

In the US, a trademark does not need to be registered. The company can still sue you for trademark infringement.

My initial thought was that you can probably get away with it legally. But if this is correct then maybe not. If in doubt don't take the risk.

Can people stop giving their "opinion" whether it's legal or illegal without using some bloody facts.

There is no law out there that prevents you from using a name, unless it breaches certain requirments i.e pretending to be another company, using the name to affect a companies sales or creates some sort of confusion.

DNGeek has brought up a brilliant example, the Easy Group (who own low cost airline Eastjet) have been trying to take legal action over hundreds of companies that try to use their name.

Yet companies like EasySpace are still around without any problems.

A trade mark does not need to be registered. It may be illegal. IP is a very complicated subject.

My advise is just to come up with a different name. If you use their name, you may be stealing some of their customers accidentally or purposefully. However you may be loosing customers as they may go to the other person thinking they are you. Google Doesn’t know!

Besides “Neverdown Hosting” is a bad name, it implies you have 100% uptime for ever. Can you guarantee this? Try to be as original and as transparent as possible.

Can people stop giving their "opinion" whether it's legal or illegal without using some bloody facts.

While I agree with that, some people already posted some facts one can verify if one bothers to. Of course, the best so-called "advice" is to talk to a lawyer, solicitor, etc. with real-world experience on this.

Thanks everybody for your response. I'll try to think for a better slogan for my product. Besides “Neverdown Hosting” is a bad name, it implies you have 100% uptime for ever. Can you guarantee this? Try to be as original and as transparent as possible.I was just using it as an example.