Question regarding trademark law

[lstarnes]

Hello -

I don't know if this is the right place to post this, but I have a question regarding trademark laws. I am attempting to start an online magazine and am trying to figure out if the name I have chosen will work or not. From what I can tell from my search on the United States Patent and Trademark Office website, technically the name I have chosen is not a registered trademark. However, it is being used by another site. My magazine is related to food and photography and this site is some sort of restaurant guide. Could I still use this name or is it out of bounds?
Also, if I put "magazine" after the name, does that make a difference? For example: let's say I chose the name "Eat" for my magazine. Instead of just using the name "Eat" and instead used "Eat Magazine" would that qualify as being a different name?

I hope this makes sense - any help or direction to a better place to post this question would be greatly appreciated.

Thanks!

 

[adjusterjack]

technically the name I have chosen is not a registered trademark

Technically, a trademark is a trademark when it starts being used by its owner. Registration only enhances protection that's already there.

However, it is being used by another site. My magazine is related to food and photography and this site is some sort of restaurant guide. Could I still use this name or is it out of bounds?

Out of bounds (likely). Here are some tests for trademark infringement:

8 Tests for Trademark Infringement

That you have to even ask the question implies that there is enough similarity between your mark/business and the other company's mark/business.

a better place to post this question

Would be to a trademark attorney that you pay for qualified advice.

What you pay an attorney now will be a fraction of what you'll pay an attorney to defend you against an infringement lawsuit.

 

[lstarnes]

Thank you so much for your reply. That's what I was afraid of - this is the second name that I have come up with that has been taken. Back to the drawing board I suppose!