You found another business using your name. Maybe a competitor two states away, maybe an account on Instagram, maybe a product on Amazon.
Your instinct may be to send an angry message immediately. Resist that, and answer four questions first. The answers determine whether you have a strong position or a weak one — and the wrong first move can make a good position worse.
Trademark rights come from use, not from filing. Being second to file is not the same as being second to use.
1. Who used it first?
This is the first question to consider, and it is not the one most people expect.
Trademark rights in the United States generally come from actual use in commerce, not from your filing date. The first user in a given market typically has the superior claim, even against someone who registered later.
So before you do anything: when did you actually start using the name in commerce, and when did they? If they were first, the letter you were about to send could invite a response you do not want.
Federal registration changes the picture significantly — it gives you nationwide presumptive rights from your filing date, which is much stronger than local common law use. It does not erase someone else’s actual earlier use.
2. Are the goods or services actually related?
Trademark law protects against confusion, not against coincidence.
Two businesses can share a name lawfully if consumers would not confuse them. A landscaping company and a software company with the same name usually coexist without a problem. A bakery and a different bakery in the same city typically do not.
The question is whether a reasonable customer would think the two businesses are connected. Similar goods, overlapping customers, similar channels, and similar price points all push toward a likelihood of confusion.
3. How similar are the marks really?
Not identical, but confusingly similar, is the standard. That includes marks that sound alike, look alike, or mean the same thing. Changing a letter or adding a word often does not avoid the problem.
If their mark uses “Cats” and yours is “Katz,” the two still sound the same and can be found confusingly similar.
Be honest here. If the marks share only a common descriptive word — “Coastal,” “Premier,” “Elite” — your position is weaker, because nobody gets exclusive rights to ordinary words. Our post on choosing a strong trademark explains why that is.
4. Where is each of you operating?
If you hold a federal registration, your rights are nationwide.
If you do not, your common law rights are generally limited to the geographic area where you have actually used the mark and built recognition through that use. A business three states away may be entirely outside your reach.
What you can actually do
These run from least to most aggressive. Start further up the list than feels satisfying.
Do nothing, for now. Rarely the first instinct, sometimes the best answer. If the other business is small, distant, in an unrelated field, and not growing toward you, the cost and risk of acting may exceed the harm.
A short, non-aggressive letter. Many of these conflicts resolve with a polite note. Aggressive letters get screenshotted and posted, and a public backlash can cost more than any actual infringement.
A formal cease and desist. Appropriate when the conflict is real and the other side has not responded to something softer. It should be written carefully: it creates a record, it can trigger a declaratory judgment action against you, and it establishes your position for everything that follows.
Platform enforcement. Often the fastest route. Amazon, Etsy, Instagram, Meta and most marketplaces have intellectual property complaint procedures. Most of them work far better if you hold a registration, which is one of the practical arguments for registering.
Opposition or cancellation at the TTAB. If they have applied to register, you can oppose. If they already registered, you can petition to cancel. These are contested proceedings with their own rules and costs, and they sit outside our flat-fee registration work.
Litigation. Time consuming, expensive, and rarely the first step.
What not to do
Do
- Establish your first-use date before anything else
- Keep dated evidence of your own use
- Start with the least aggressive option that could work
- Act within a reasonable time of finding out
Do not
- Claim rights you do not have
- Use ® if you are not registered
- Post about it publicly first
- Wait indefinitely and hope it resolves
Do not send anything claiming rights you do not have. Do not say “registered” if you are not registered, and do not use ® to make a letter look stronger. It undermines you and can be used against you later. Our guide on when you can use TM, SM and ® sets out which symbol you are entitled to.
Do not post about it publicly first. It escalates, it invites a response, and it can create evidence that is used against you.
Do not wait indefinitely. Delay can weaken your position. If a court sees that you knew for years and did nothing, that can be held against you.
The pattern worth noticing
A large share of these situations trace back to the same root: nobody searched the name before adopting it. Both businesses picked it in good faith, both invested in it, and now one of them has to change.
If you are reading this because you are the one who received the letter, the same four questions apply, potentially in your favor. Being second to file is not the same as being second to use.
Where to start
Send us what you have — their listing or website, your first-use date, and your registration number if you have one. We will tell you honestly how strong your position is before you spend anything, including when the answer is that it is not worth pursuing.
If it turns out you do not have a registration, our flat-fee trademark registration covers the process, and it is the thing that makes every one of these conversations easier the next time.
This article is general information, not legal advice, and reading it does not create an attorney-client relationship. Rules differ by state and change over time. Please speak with a licensed attorney about your own situation.