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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Intellectual Property Law
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trademark Question If a nonprofit entity has been using

Customer Question

trademark Question

If a nonprofit entity has been using a name for a long time but never bothered to trademark the name can someone else trademark the name and use it?
Submitted: 4 years ago.
Category: Intellectual Property Law
Expert:  Dimitry K., Esq. replied 4 years ago.

Thank you for your question. Please permit me to assist you with your concerns.

That is a very good question. The answer is both 'yes' and 'no' on trademarking. Please allow me to explain.

If a trademark is not formally protected, anyone can attempt to record it and trademark it. However, if the nonprofit can show that they have already obtained a 'secondary meaning' or have had this trademark widely associated with their name, then they would still be upheld as having a far stronger claim to the name, even unprotected, then the new party. In essence the new party can be sued by the nonprofit for infringement and request that the courts transfer the rights to the name back to them because they have a far stronger interest to the property. Of course the non-profit may choose to not pursue this fight and then the new entity may slowly obtain a stronger claim to the name, but at least primarily even unprotected the current non-profit has a very strong right and claim to this name.

Good luck.

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