Can Businesses in Two Different States Have the Same Name and Product

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I am looking to open up a fast food restaurant in New Jersey. The name of my business will be "halal guys". I looked at the trademark info on uspto.gov and someone already has the name. TRADEMARK INFO ... They are a mobile food cart located in a nyc street corner. I'm a fast food restaurant in New Jersey located in a mall. Both of our foods have similarity.

This is what was written
IC 035. US 100 101 102. G & S: Food kiosk services; Mobile food cart services and street vendor services featuring food and beverages, including but not limited to sandwiches, gyros, wraps, meals, and fast foods containing lamb, poultry, beef, falafel, or rice. FIRST USE: 20051010. FIRST USE IN COMMERCE: 20051010
IC 043. US 100 101. G & S: Mobile restaurant services. FIRST USE: 20051010. FIRST USE IN COMMERCE: 20051010

Can I use this name for a restaurant?

[jk]

if the other halal guys don't mind, yes.

If you do not serve the same geographical area, you would likely be able to use it but that doesn't mean they won't attempt to get you to stop and even sue you if they believe you are infringing upon their name.

and when I say: serve the same geographical area, I don't mean simply that you are not in NYC do you do not serve the same geographical area. If you are close enough so that customers of NYC halal guys would come across your restaurant in their normal activities, you are within the NYC halal guys territory.

how about halal hal's?

[LAWwaldo]

Something else to consider is that by using the same name it could be more difficult for you to Trademark the name, especially if you tried to expand into the territories that the original "halal guys" are.

[jk]

Something else to consider is that by using the same name it could be more difficult for you to Trademark the name, especially if you tried to expand into the territories that the original "halal guys" are.

you "trademark" the name simply by using it. You can register the trademark once you establish it which has its benefits but it is trademarked simply due to use in commerce.

[Conrad Hunter]

I would not do it that way.

If that is a name or generic word, I would not use it by itself in any case. For instance, if it is a type of sandwich, it will be a legal nightmare. Something like "Mike, the Halal Guy" would be better. Not saying it is a good name. Don't call it Bob's Big Halal. (Too close prob to Bob's Big Boy)

Your competition does not qualify for a federal trademark, and you probably don't either. Lots of federal trademarks are registered for local businesses and they are not valid federal trademarks. A Federal trademark MUST be used in INTERSTATE COMMERCE.

Local trademarks should be registered on the state level. If you wanted to be evil, you could register their and your trademark in your state and their state. Then attack their trademark as invalid in federal court.

If you win, and you should, then you are legally using the trademark in two states (and have it registered) and thus would legally qualify for the federal trademark.

I know lawyers that charge $1,000 an hour for this exact advice.

[jk]

[QUOTE]

I would not do it that way.

If that is a name or generic word, I would not use it by itself in any case. For instance, if it is a type of sandwich, it will be a legal nightmare. Something like "Mike, the Halal Guy" would be better. Not saying it is a good name. Don't call it Bob's Big Halal. (Too close prob to Bob's Big Boy)

and so you believe Five Guys Burgers and Fries is not acceptable as a TM? To me, 5 guys and Halal Guys are pretty similar in their usage of common terms simply modified by a human component representing ownership. Five Guys seems to have had no problems with their name.

Your competition does not qualify for a federal trademark, and you probably don't either.

Did you miss the fact that the other guys actually already do have a federal trademark registered?

Lots of federal trademarks are registered for local businesses and they are not valid federal trademarks. A Federal trademark MUST be used in INTERSTATE COMMERCE.

but the fact remains, they do have a federal TM. That in itself, unless challenged (read: lots of money), is going to be considered valid.

Local trademarks should be registered on the state level. If you wanted to be evil, you could register their and your trademark in your state and their state. Then attack their trademark as invalid in federal court.

Um, you do realize that use is what qualifies a TM, not registration, right? As such, even if the other guys didn't already have a federal TM, they do have first use in commerce in their home state. That would defeat the OP's registration of the TM in NY.

If you win, and you should,

No, he shouldn't, especially given the other guys already have first use in commerce in at least their state plus an already federally registered mark. Beyond that, your argument is self defeating, especially since you have already told the OP that it requires interstate commerce to establish a federal mark which the OP has not claimed any intention of doing.

then you are legally using the trademark in two states (and have it registered) and thus would legally qualify for the federal trademark.

again, registration does not defeat proof of first use. If the OP did somehow succeed in having the other guys federal TM nullified, he would still not be able to prevent the use by the other guys since they do have first use rights.

I know lawyers that charge $1,000 an hour for this exact advice

I can find guys that charge less and guys that charge more. Not really seeing the point though.