Legal to trademark a name already being used but in which is not filed?

You need to consult with an IP attorney with the specific facts. If someone else has senior rights to the mark based on use in commerce, your application could be challenged, and if successful, may not give you exclusive rights. For example, suppose Sandy's Candies in San Diego sells a truffle under the trademark YumYum starting in 1995, and Jack's Snax in Jacksonville starts selling a chocolate under the same mark in 1999. Jack's registers the trademark in 2000 with the USPTO. Sandy has first use in commerce, and Jack's registration won't force Sandy to stop using the mark in the San Diego area - in fact, if Jack's expanded westward, Sandy may well be able to prevent Jacks from using the mark in San Diego. This is very fact-specific - consult with an attorney first before you plunk down $300 for registration!

My colleague's answer has given you a good explanation of geography and timing. Other TM basics: TM rights are acquired by use, not by registration, and they need to be continually maintained by perpetual use and protected by policing against others' use. But USPTO registration does has value, since after 5 years it gives your TM a legal presumption of "incontesibility." But that doesn't mean that a competitor can't try to contest your TM rights. When you apply for a TM, you list your dates of 1st use, and the USPTO takes your word for it, but someone can challenge your claim to superior earlier rights with a lawsuit or a USPTO petition, and then you have to prove your use. As for using your own artist name o you mean a tradename?), no one has the absolute right to use their given surname, and if someone else beat them to market using their name, there's not much they can do about it. Your query doesn't indicate whether you and this other person supply the same products/services --there are 45 interntainal TM classes of goods and services --so it's not clear there's even a conflict. A TM is a fairly complicated IP right - don't try to do this without counsel. About 1/2 of all TM applications get rejected by the USPTO for one reason or another, so do some reading, like the guide linked below or one like it, and see IP counsel. Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.

I agree with my colleagues. Trademark rights arise out of usage of a mark in commerce in connection with particular goods or services. If someone else is already using the same or a very similar name for the same or related services, then as the prior user they have probably acquired common-law trademark rights (i.e., rights that exist without a USPTO registration) in those geographic areas in which they are conducting marketing and sales. You should definitely consult a trademark attorney before applying for the mark, since you will need advice on possible infringement issues as well as the likelihood of obtaining a federal trademark registration. Having said all that, legal issues aside, why would you even want to brand yourself using a mark that you know is not unique to your business and services and therefore cannot function as a great differentiator? From a branding perspective, as well as a legal perspective, starting afresh with a new name might very well be the way to go. Disclaimer: The foregoing is provided for informational purposes only and does not constitute legal advice. You should consult with an attorney licensed in your jurisdiction before taking definite action on this or any other legal matter.