The answer is an unsatisfying maybe. Even more unsatisfying, the trademark registration potentially available would be a less-preferred “concurrent-use trademark registration.” The legal doctrines and procedures applicable here are somewhat complicated, but a high level overview will provide some insights. We recommend discussing concurrent-use registrations with an experienced trademark attorney for more specific information.
A company selling products under a trademark establishes rights to that trademark wherever it is selling products – even if the company does not register the trademark in question with the USPTO. The rights established through commercial use alone are often referred to as common law trademark rights; though, there are federal statutes establishing trademark rights in this context. Registering a trademark with the USPTO establishes nationwide rights to the trademark as long as another company does not have preexisting rights to the trademark.
Preexisting right established by commercial use are geographic specific. This means that one company could have rights to the trademark in one region while another company has rights to the trademark in another region.
With the geographic aspect of trademark law in mind, the concept of a “concurrent-use” trademark registration makes more sense. A concurrent-use trademark registration involves the Trademark Office registering a trademark to one company for one region and registering the same trademark to another company for a different region. In some instances, the other company does not actually register the trademark for the other region, but the first company’s concurrent-use trademark registration is still limited to the other region.
All of this is a long way of saying that you might be able to register a trademark for geographic regions in which the other company is not selling product under that trademark. You probably would not be able to register the trademark on a nationwide basis, but instead would likely need to pursue a concurrent-use trademark registration providing exclusive rights to the trademark in a particular geographic region.