Updated November 12, 2020:

If you're wondering, "can you trademark something that already exists," the simple answer is "no." Generally speaking, if somebody has used a trademark before you, you can't register the trademark for yourself. However, if you have been using the trademark yourself, it is entirely possible to register the trademark to prevent others from using it.

Can You File for a Trademark That Exists?

Registered trademarks offer certain legal protections to unique items such as logos or designs that are associated with tangible objects. In simple terms, this means if somebody else used a trademark before you, you're not able to register that trademark for yourself. If, however, you used the trademark first and learn that somebody else is using it, you may have grounds to contest their use of the trademark in question.

Keep in mind this only applies to the market where you were operating when the other entity registered the trademark. In cases like this, you have virtually no rights in terms of market expansion. The entity that registered the trademark with appropriate federal authorities takes priority in every other market, and they have the right to keep you from using the registered trademark in any areas where you weren't originally using it before they registered. When a company registers a trademark, they are providing a formal, legally binding notice that they own it and nobody else is authorized to use it.

The laws that pertain to trademarks are complicated. This is why many people choose to hire an attorney with specific knowledge and experience in this area if they need to contest a trademark. An existing product might be protected in multiple ways, such as:

Registering a trademark is only a single part of obtaining strong and enforceable trademark protection. In fact, registering a trademark isn't a legal requirement when it comes to asserting your ownership. Trademarks become stronger as they are used over a period of time. This fact causes many people to choose to use their trademarks before they register them. In this particular scenario, you can register an already existing trademark. The United States Patent Office has a specific registration form exactly for this purpose.

Registering Similar Trademarks

If somebody else is already using a mark that is reasonably similar to yours, it's likely that your application for trademark registration will be denied. United States trademark law requires trademarks to be entirely unique from any other than are currently in use. Changing the color of a trademark, for example, or making other minor alterations, is usually not sufficient to make a trademark unique enough to make it ok for you to use. This is true from both a legal and a morally ethical point of view.

However, if you can prove that you've used the trademark before it was registered by somebody else, it may be possible to register it for yourself. You'll need to be able to provide sufficient proof that you are the trademark's original owner to be successful.

Adding something to the original design that could be considered category changing might be enough to get you a patent. A ball-point pen that heats up when its ink is cold, for example, might qualify for this. While it's still a pen, a significant redesign has occurred.

The main thing to keep in mind when working with trademarks is the need to avoid confusing consumers. With this in mind, if it's highly unlikely that another company's customers will be confused if you use the same name they're using, there probably isn't a trademark issue in play.

One of the things the courts will use to determine how likely it is for consumers to be confused is considering whether or not the two companies in question are operating in the same industry. For example, if you were to start a brand new social media platform and name it "Facebook," you're likely not going to win a trademark dispute with Mark Zuckerberg.

However, if you named your new social media company "HotSpot," and a company that produces cookbooks is already using this name, you're not likely to run into a trademark issue. While both companies are using the same name, they are in completely different industries so the potential for creating confusion among consumers is practically nonexistent.

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