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How can I trademark name?

Can someone force me to change the name of my business because they own the trademark to the name?

  • I have a company that I started in college. I bought the domain name to my company and have been using it as my business website for over two years. Today I got an email from someone saying that I have to change my business name because they own the trademark to that name. However, they just obtained their trademark in 2013. Over a year after I had already been using the same name. We both are offering photography services. And yes....I am kicking myself for not trademarking the name. But my question is, what rights do I have legally? Can they actually force me to change the name of my business even though we are both operating in completely different states and I was using it way before them? And does the fact that I have proof of ownership over the business name as my domain before they registered the trademark mean anything? Where should I go from here?

  • Answer:

    Typically, if you started a business first you have the oldest rights. Not knowing specifics, here's what I learnt this morning: If you can document that you have older rights, the other party is usually in the wrong, typically. The United States Patent & Trademark Office has a very comprehensive site that has a lot information on this topic and gives guidance: http://www.uspto.gov There is a state level and a nationwide filing, so you can check what type the other party filed on the website above. This is important, because if the other party just trademarked it at state level, it is automatically in the wrong, since it does not afford it any rights in your state. The nicest resolution is to get your facts straight on the basis of this information and to validate that with a specialized IP/Trademark attorney locally. You can then reach out to the other party and give pushback on the basis of your older claim. Ideally you negotiate a stand off. If you have to go legal on this, it is going to cost them and you a boatload of money. Hope this helps. This answer does not constitute legal advice, only general information to point you in the right direction. Consult a local (bar registered) attorney to give you specific advice on this case.

Martijn Sjoorda at Quora Visit the source

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Trademark registration creates a presumtion of exclusive rights, but you may have established a common law trademark right within certain geographic area. You are on a uphill battle, but if it's worth your time, you can fight yourself out of it. An attorney you hire would evaluate responding to the demand and if no settlement can be reached, see if the other party is able and willing to go to the next level by filing suit. I'd be surprised that a single photographer would go to such lengths, because a trademark in that line of business is not usually worth that much. Can't insert disclaimer on mobile phone. Not your lawyer, get your own, do not rely, and not legal advice, etc.

Nasir N Pasha

I cannot give legal advice on an open forum but in the United States trademark rights go to the first to use (or to file an application).  So if your date of first use is earlier than their filing date (or first use date) then you have "priority" and can do some things to fight back.

Paul Reidl

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