How would a product be considered organic?

Considering that we haven't yet closed a sale, and we have been showing the product privately (our product is meant to b2B), would our use be considered "use in commerce" prior to theirs, which would give us basis for a trademark application?

• I have been using a name for one of our products since may/2012. The product is a mobile application. We have been showing the product for investors, offering to potential clients (business) and testing the software between a close group of invitees and developers. We have registered the trademark in another country in june/2012 (same place where we have been offering the product). We also have built a landing page (just a coming soon landing page) in february for that product, with the name and mark on it. Also in May, I sent an email to close to 100 designers in order to get a quote for criating the logo (we ended up hiring one of them to design the logo, which was completed in the beginning of june). Since we are a US ccompany, this week I looked into registering the name in the US and I found out that someone else filed a trademark for the same name than our product 2 weeks ago (they claim first use in commerce July 30th, 2012). (They filed the trademark for a physical product, which is an pet accessory). I know for sure the specimen they (the company with the competitor name) submitted is invalid and it also appears that they haven't really started using the product in commerce (the website where they direct the clients to buy the tags doesn't work, and I couldn't find any place where I could buy the tags).  Even in the case we can't (file a trademark) could we still both use the same name? (I really don't care if they use the trade name within their industry, I just want thhe right to use the same name in ours, since we already invested too much money in marketing and sales efforts)

• Answer:

  You have a couple of things going on that should allow you to gain the trademark. The most important is the first element. 1. Trademarks are specific to a classification.  Unless there is overlap between the industries you can both exist. 2. Your previous registration in another country can help solidify your prior use date. 3.  Your landing page will not work as proof of use in commerce because it does not offer the services you are providing it just states that you will have them in the future.