Sure, but does it sound confusing enough for someone to sue Mark Cuban long enough to get that changed to something less confusing? And who’s going to have standing to sue him?
Ultimately unless someone bitches, it’ll stand. And it’s not like the Cuban government is going to sue Mark Cuban for that sort of thing.
Unlike copyright, where no one in the Copyright Office is checking to see if the work you just registered infringes some previous copyright, the USPTO does evaluate trademark applications, and can choose not to register one if it violates one of the exclusions provided in the law, a few of which were mentioned above.
I suspect that Mark Cuban has the legal muscle to get “Cuban’s Cigars” registered, and if the USPTO refused, he could probably go ahead and sell them under that name anyway. Although I have held a couple of trademarks, I am not as familiar with trademark law as I am with copyright, but I don’t believe that having a trademark declined prevents a company from trading under that name; it just doesn’t have exclusive rights to it. For famous brands, that’s a big deal. So it might be a problem for Mark’s fledgling cigar company.
It’s possible that “Cuban’s Cigars” might also run afoul of some other government agency’s rules or regulations, like truth in advertising, although that seems a stretch to me, since it’s his name.
One thing I’d note is that that the “Wisconsin cheese” trademark is owned by the Wisconsin Milk Marketing Board, a nonprofit organization which represents all Wisconsin dairy farmers. So the trademark really does apply to any product that can reasonably be considered “Wisconsin cheese.” I’m not a trademark lawyer, but there may have been a different outcome if say Kraft had tried to trademark “Wisconsin cheese.”
Geographic confusion aside, one would think that something that’s been around publicly for a long time can’t be trademarked but you’d be wrong.
One example is the term “three-peat” which was used by several people before the LA Lakers’ three championship seasons run. Well, 2 and a failed 3rd. Lakers coach Pat Riley got a trademark on it and ended up making bucks on it when the Bulls actually did it later on.
The burg of Hollywood, CA unsuccessfully tried to trademark “Hollywood” several years back which caused quite an uproar. But they did trademark the Hollywood sign. Which they never built, has been photographed a zillion times, etc.
The former. In order to register on the primary register, he needs to overcome the existing association of “Cuban” as a descriptor of the country where certain Cigar’s come from. If a normal person (and PTO examiner) hears “Cuban” and first thinks of the country, the PTO examiner will disapprove Mr. Cuban’s registration on the principal register (which is where you want your trademark to be - registration on the supplemental register is relatively easy to get but gives much less protection).
As @commasense notes below, the USPTO can reject a filing even if no one sues. The government has an interest in making sure that trademarks are not deceptive. Believe it or not, trademarks are for the protection of consumers, not corporations, even if corporations don’t treat them that way. Trademarks are protected by the government because they help to ensure that consumers can get dependable goods and services from the providers they know and trust, and not from fraudulent copycats.
I’m not particularly strong on trademarks either. When I had clients that owned trademarks, they had other people to work on those issues. I was only involved in a minor way.
A person may or may not have exclusive rights to a trademark that isn’t registered. One thing is certain though, a person that has a trademark registered on the principal register for a class of goods or services does have certain presumptions that protect their exclusive use, including a presumption that they own the mark and that it is valid. People without a registered trademark have to establish all that each time they want to assert that they own a trademark.
“Several people” may have used the term “three-peat” before the eventual trademark holder but that’s not the key factor. The real question is whether they used the term to identify a particular source of goods or services in commerce. My hunch is that people might have used the term “three-peat” to talk about a feat of sportsmanship but they didn’t use it as a brand for “Three-Peat Athletic Wear” to clarify that this particular jogging suit came from the fine people at the Three-Peat Corporation. If your story is correct, it sounds like Pat Riley was the first person who wanted to slap “Three-Peat” on his line of “Three-Peat” t-shirts or memorabilia to identify his company as the source of “Three-Peat” goods. If it just so happened to stop other sellers of selling goods declaring “Three-Peat!” on T-shirts after a particular sporting championship, well, that was just a coincidence. 