Trademark Law

[nwingate]

I’m interested in trademarking a business name and I've done some research on it. What I've found is that no one is using the name in the industry I wish to use it in. But someone does have the (root) name trademarked.

I know that I'm not making sense so I let me give you an example...

If someone has the name "BRAIN FREEZE" (example only) trademarked... can I trademark "BRAIN FREEZE ICE CREAM" or is the name considered taken?

[OhioDave]

I am selling my new product "Pepsi Ice Cream". I never asked the fine people from Pepsi Co. if I could use their trademark, but I'm sure they won't mind.

To answer your question, Yes... I would say this is taken. If Brain Freeze is registered, Ice Cream is the type of product not an extension of the name.

But, here is the tricky part... Will the fine people that own the Brain Freeze trademark mind if you use their trademark without their permission? The taken / legality issues are policed by the people that own the trademarks. To my example above, I can sell Pepsi Ice Cream all I want, but if Pepsi Co. says stop, I might be in trouble. They have lots of legal presidents in their favor... Might have to turn over all proceeds gained from selling under their name and maybe pay damages...

Their are trademark / patent lawyers that can help more with issue...