Someone is using my trademark: what you can do

First: is it a conflict?

The legal test is likelihood of confusion: would buyers probably think the two businesses are the same or connected? That turns on how similar the marks are and how related the goods are. Acmeflow for invoicing software and Acmeflo for a rival invoicing app is a conflict; Acmeflow for a landscaping company very probably is not, because only a famous mark reaches every market through dilution.

Then ask who was first. Rights in the United States follow use, and a registration on the Principal Register carries them nationwide from the filing date. Look at when the other side started: their site's history, their social accounts, their USPTO filings. If they were first for related goods, you may be the one at risk.

Then ask where. Unregistered common-law rights reach the area where the mark is known, so two unregistered businesses in different regions may each be entitled to their own territory, and the one that registers first takes the rest of the country. Keep dated screenshots of whatever you find.

Watching for conflicts

Conflicts are cheaper to answer early, so watch rather than wait:

• The USPTO's records. Search them every few months for new applications close to your mark; how to search for a trademark shows how.
• The Official Gazette, where the USPTO publishes approved marks weekly; publication starts the 30-day clock to oppose. A watch service does the reading for you.
• The web, the marketplaces and the app stores, with alerts set for the name.
• Your own customers. Misdirected emails and orders for the wrong product are how many owners first learn that confusion is real.

Delay has a cost: a court can hold an unreasonable wait against an owner who knew and did nothing, and every similar mark left standing makes yours narrower.

What a registration changes, and what it does not

You do not need a registration to sue. Section 43(a) of the Trademark Act protects unregistered marks; what the owner carries is the burden of proving that the mark is distinctive, that it is theirs, and where and since when it is known.

A registration on the Principal Register carries most of that weight. It is prima facie evidence that the mark is valid and yours; it gives nationwide priority from the filing date; after five years it can become incontestable. Marketplace brand programs and platform complaint forms ask for a registration number, and a registration can be recorded with U.S. Customs and Border Protection to stop infringing imports. Use the ® symbol with it; TM versus ® explains why notice matters for damages.

What a registration does not do is act. The USPTO will not contact the other party or take down a listing; only a court can order use to stop.

The cease-and-desist letter

A cease-and-desist letter is a letter, not a legal proceeding, and nobody is obliged to obey it. It works when it shows the recipient that you would win. Most disputes end here, with a negotiated result.

A good letter identifies your mark and your registration or application number, describes the conflicting use with evidence, explains why confusion is likely, says what you want and gives a date. What you want is a menu, not always 'stop': a phase-out period, a change of name in your field only, an undertaking not to expand. A coexistence agreement is a common end.

The letter has risks, which is why the attorney should draft or review it. It can prompt the recipient to sue first, in a court of their choosing. It can expose a weak position: they were first, your mark is descriptive, the goods are unrelated. And claiming a registration you do not have is unlawful in itself.

If you receive one, the same rules apply in reverse. Do not ignore it or answer in anger. Check what it claims: whether the registration exists, who was first, how related the goods really are. The deadline in the letter is the sender's, not a court's, and a measured reply usually opens a negotiation.

At the USPTO: protests, oppositions and cancellations

A letter of protest is the cheapest tool. If the other side has applied, anyone may send the USPTO objective evidence for a ground of refusal for the examining attorney to consider. The fee is $150. The submission is evidence with no argument, and it does not identify you to the applicant. Filed before publication, the evidence need only be relevant; filed within 30 days after publication, it must make out a clear case; after that it is too late. It does not extend the time to oppose.

An opposition is a proceeding before the Trademark Trial and Appeal Board asking that a published mark not register. It must be filed within 30 days of publication, and the window can be extended: a first 30 days on request with no fee, or 90 days for good cause at $200; a further 60 days for good cause; and one final 60 days at $400, to a maximum of 180 days. The notice of opposition costs $600 per class. Most oppositions settle.

If the mark has already registered, the tool is a petition to cancel, at $600 per class. Within five years of registration it can rest on any ground, including your earlier use; after five years the grounds narrow under Section 14 of the Trademark Act. For a registration that is not in use, two newer petitions apply at $400 per class: expungement, for a mark never used, and reexamination, for a mark not in use when use was claimed; the USPTO's expungement and reexamination page explains both.

When to call the attorney

Watching and gathering evidence you can do yourself. These are the points at which the next step should be the attorney's:

• Before anything goes out in writing.
• When a letter arrives addressed to you.
• When the other side has filed at the USPTO, because the opposition clock is short.
• When the other side holds a registration.
• When the copying is counterfeiting, or the other side is larger.
• When you have no registration, because filing now is the first move in almost every strategy.

A lawsuit is the last tool and the most expensive. Under Section 32 for registered marks and Section 43(a) for unregistered ones, a federal court can order the use to stop and award the infringer's profits, your damages and costs. Most cases settle, faster when one side holds a registration.

Enforcement is outside the flat filing fee. On a free call your attorney looks at the two marks, the two sets of goods and the two dates, says which tool fits, and quotes any work before it begins. Sometimes the honest answer is that there is no conflict at all.

Seen your name on someone else's product? Bring the screenshots and your first-use dates to the call. Book a free attorney call

Questions about this topic

Can I stop someone using my name if my trademark is not registered?

Sometimes. Trademark rights come from use, and Section 43(a) of the Trademark Act protects unregistered marks, so a business with earlier use can object to a confusingly similar name in the area where its mark is known. Without a registration you must prove that the mark is distinctive, that you own it and how far it reaches.

How long do I have to oppose a trademark application?

Thirty days from the date the mark is published in the USPTO's Official Gazette. Before that window closes you can request an extension: a first 30 days on request, then further extensions up to a maximum of 180 days from publication, the last only with the applicant's consent. A letter of protest does not extend the deadline.

Does a cease-and-desist letter have legal force?

No. It is a demand from one private party to another, and nobody is obliged to comply with it. Its force comes from what it shows: that you hold rights, that confusion is likely and that you are prepared to act. A letter that overstates your rights can hurt you instead.

Related guides

• Likelihood of confusion, in plain English: How the USPTO decides two trademarks are confusingly similar: sound, appearance and meaning, related goods, and how to answer a Section 2(d) refusal.
• What each USPTO trademark status means: USPTO trademark statuses explained: pending, published for opposition, registered, abandoned, cancelled and expired, and what a dead mark means for you.
• Does a small business need a trademark?: What federal registration adds to the rights a small business already has, when filing becomes urgent, what a trademark does not do, and what it costs.

Contact

Trademarky, LLC, 78 SW 7th St, 5th FL, Miami, FL 33130. (305) 562-6800, hello@trademarky.io. Monday to Friday, 9am to 5pm ET. Available by appointment.

This free check is an AI-assisted preliminary screening against known U.S. trademark records. It is not a comprehensive clearance search and not legal advice. Only a licensed attorney can advise you on whether to file.