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Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Intellectual Property Law
Satisfied Customers: 116787
Experience:  Attorney practicing all aspects of copyright/trademark law
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I want to use the name DefinitelyFamous magazine in the US.

Customer Question

I want to use the name DefinitelyFamous for a magazine in the US. One exists in the UK using the name on ISUU.com have the domain name at the moment. Will I be running into legal trouble should I make another magazine of the same name?
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Under the trademark laws, the US has international treaties and if there is a publication using the name in the UK, then they can actually sue you and prevent you from using the name in the US. The test that is used in the trademark law is called "likelihood of confusion" and it means that if a court can find that the other party used the name in commerce before you and that your use of that name could cause confusion to the reasonable consumer with the other magazine, you would be violating their trademark rights.
So, if there is another magazine with the same name, you need to use some different name for your magazine to avoid such likelihood of confusion.
Customer: replied 1 year ago.
Does that mean that if they didn't file the trademark I'm able to use the name?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
No, a registered trademark is one that gives a legal presumption of rights, but there is also a common law trademark, which is a right acquired by simply using the unique name in commerce. Even if they have a common law mark, they can stop anyone else from using it as long as they prove they were the first to use the mark in commerce.

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