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I am just starting development on a new gym app and have a name that I really want to use for it, however, upon searching the app stores (Apple App Store & Google Play) I have found an existing gym app that is using the exact same name.

This existing app project hasn't been updated since November 2016, I have tried to contact the owner to ask for permission to use the name but they haven't responded (they are an individual; not a company).

The app itself doesn't work, attempting to creating an account does nothing so presumably it's an abandoned project and the backend has been taken offline. The links to the developers website, T&C's, and Privacy Policy are also all broken.

I am based in the UK and I am unable to determine the domicile of the existing apps owner.

I've searched WIPO and found no existing trademarks or protections for the name, so my question is am I able to use it without infringing the existing app owners IP?

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    You might find that Apple (probably Google too) won’t allow two apps with the same name whether you’re breaking any laws or not.
    – Darren
    Aug 8 '21 at 14:44
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If the other app has registered its name as a trademark, and you use the same or a similar name, you might be subject to a legal action for trademark infringement. This can result in an award of damages and/or an injunction against the continued use of the name.

If the owner of other app has not obtained a registered trade mark, the name will still have limited protections based upon proof of use, but those are much more limited and easier to overcome.

One may file to register a trademark which another entity is already using without registration. There will be an official decision to grant or refuse such registration.

As stated in the Official UK web page on trademark revocation if a registered trademark has been unused for five years or more, a proceeding may be brought to have it revoked. The name would then be free to have another owner register it (if revocation is granted).

Evidence of actual sales during the five year period will often prevent revocation. The official guidance strongly advises asking the trademark holder to surrender the trademark before filing a revocation action. There is a fee of 200 pounds for filing such an action, and there are likely to be additional costs and legal fees.

The UK is a "first to file" jurisdiction, meaning that the person or firm that first files for use of a particular trademark is generally awarded that mark, regardless of the prior use by another applicant. This and much else is described in the article "Understanding United Kingdom Trademark Law" from Gerben IP. See also the Wikipedia article "United Kingdom trade mark law" and the official UK page "Trade marks: detailed information" which links to many other UK Government pages on the subject.

Once a trademark has been registered, the owner must take reasonable steps to defend it, sending cease-and-desist letters or filing legal actions as needed. An owner that fails to do this may be deemed to have abandoned the trademark, and lose the registration.

As a comment says, online app stores may be unwilling to list a second app with an identical or even a very similar name. If the new app has obtained a registered trademark, that might indue the stores to list it, but they are not legally required to do so. If the existing app is not being supported, that may influence the decision of the stores, but they are not required to monitor this, or even consider it.

A would-be trademark holder would be wise to consult a qualified trademark lawyer or other expert.

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