How do you obtain a trademark?

Incorporated company as ABC LLC, but decided to change DBA name to DEFme.com, then noticed another company named DEF.md in the same field. 1) should we change incorporation to DEFme LLC and/or 2) should we obtain trademark for "DEFme"?

• Answer:

  As with all questions seeking legal advice, the best route is probably to go speak to an attorney in your area, since the question you pose doesn't really contain adequate facts to get any good legal advice, nor should you take any legal advice you find on the Internet. That said, whether or not someone can use a name or protect that use of the name against infringement has little or nothing to do with whether he's using it as a DBA or has registered it as an LLC.  The second question is also based on a bad premise.  People get trademark rights in a name through using it, and a prior user of a mark that's confusingly similar has superior rights to use that mark within its own established market.  Assuming a prior user's market isn't restricted to any particular geographic location (and many web-based businesses aren't), they may be able to argue successfully for a fairly large market that might also include wherever the alleged infringer might be marketing his website.  Registration of a trademark doesn't do much to change this, and the prior users of the mark could still sue an infringer for infringement and possibly for the cancellation of his trademark registration. In addition, even if the prior user didn't care to sue the infringer for damages, they could still attempt to get ownership of the infringing domain name through the UDRP arbitration process, which I won't get into too much here, but still mention for completeness. The point to all this is that if there's a prior user of a confusingly-similar trademark out there, the general rules are that one either needs to pick a different mark, or else be very careful in analyzing which products and which markets with which it might be safe to use the mark.  I would also say that anyone using the second option should probably keep some funds in reserve so as not to be caught flat-footed when and if the prior user decides to sue for trademark infringement.This answer is not a substitute for professional legal advice....