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Business trademarked my name and issued cease and desist
Posted by Anonymous . updated on 2/26/2009
Hi, I'm new here and need some advice.
I have a corporation that was established in 2002 operating in KS and MO in the KC Metro area. A company with the same name operating locally in a different state (there are many of us with the same name in different states) registered a trademark for the name (same as mine and many others) a couple weeks ago and had a lawyer send a cease and desist letter saying I was going to be sued for trademark infringement.
Is this legal? What's to keep me from registering a trademark on any common name used by local businesses in different states and trying to force them out of business? Thanks for any advice.
Answers (3)
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c.hugan
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There seem to be numerous issues to address--prior use, likelihood of confusion, generic nature of mark, etc. Find a trademark attorney in your area. Call your local bar association if you need a referral. Chris http://nashvegaslawyer.wordpress.com/
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giggler
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I think if your business is in the same class of business, then there can be issues since there will be a likelihood of confusion. So if you are selling shirts and they are selling shirts, then there can be confusion. But if you are selling shirts and they are selling cat food, then it might not be an issue.
Though if yours was created first and you have proof of it, I thought that you can keep using it in your state but I'm not a lawyer...having a lawyer involved is probably the best if you want to keep using the name.
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bcapehart
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Fyrmnk -
Howdy from your neighbor to the south. It looks like you may have some issues, but a bit more is needed. The main questions will be when did you and other company first start using the name, what are the goods/services and if there is any overlap in the geographic location of the two businesses.
If you were first in time and/or not operate in the same geographic area, your common law rights may be superior to the other companies. A federal registration is always issued subject to pre-existing common law rights. The holder of the fed. registration has superior rights nationwide, subject to pre-existing common law rights holders. What the registration does is in effect freeze the scope of the territorial area of the common law rights holder.
I would agree in that you should probably talk in a tm attorney.
I hope this helps.
Brent
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