Battle Trade

If you want to trademark something, and the name is taken but in a different category, HOW different must it?

be? If I send in the application + $ do I lose it if it's rejected? the categories are one is a "candy" and the other is going to be a "medicinal agent" but it's the same name! help? thanks How much is the application (approx.) for a one-person show?

Public Comments

1. Trademarks only protect your name in the industry in which you registered it. Thus, you could still get a TM for the same name in a different "class of goods," as the term goes. You do not get your money back if they reject your application. You should speak with an attorney that specializes in trademarks/IP law. TM application are about $500 bucks, plus you usually have to answer "office actions," which the USPTO will send contesting your mark. It's best to hire an attorney for these.
2. The answer above is not correct. Trademark classes are really just a convenience for the USPTO. They have no legal significance as far as trademark infringement is concerned. It is fully possible (and common) to receive rejections of marks listed with one class based on another mark registered in another class. Similarly, it is possible to have the same mark registered separately for different goods in the same class. Trademark rights are not acquired through registration. Instead, trademark rights are acquired by using a mark in commerce as a source of goods or services. You cannot "trademark" a name in the abstract. You must be using the name as a source of goods or services before your mark can be registered. The legal standard for determining whether a mark is infringing is likelihood of confusion. That is, if your use of a mark is likely to cause confusion with another mark as to the source of goods and services, then you may be infringing another's trademark rights. Given your inexperience in this field, I strongly suggest you seek the advice of a trademark attorney. Trademark prosecution is fraught with pitfalls. You stand to lose any rights to your mark if you do not proceed properly.