# trademark



## sconrad84 (May 13, 2008)

Ok i started a clothing line and currently do not have te name trademarked nor the logo trademarked.. 
We are going to print our next small run of shirts this month and then buy a trademark for the logo and name...
how much am I at risk for not buying one right away? its been allllmost a year since my first shirts and although they sold only fairly well we focused a lot of time on marketing and designing these next shirts. So basically Im not sure if a lot of people know about the brand enough to "steal" the name and logo. should i be worried of someone taking my business name/logo?
or not


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## splathead (Dec 4, 2005)

What are they going to do with your name and logo?

You've incorporated the name, or otherwise registered it, right? You have the .com website for the name right? 

The longer you have had your name and logo in the market, the less you have to worry about trademark.


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## sconrad84 (May 13, 2008)

yea i have the name on the shirts and have the . com site


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## BWD (Mar 8, 2009)

Just a quick thought for you. I ve had my site up for a year now, dot com and dot ca. Researched the name when I first started, couldn t find anything on it. SO I put off trademarking until this year was over. Totally screwed myself in doing so.

First thing I did wrong, did a trademark search for the whole name, Requiem Clothing, should have searched just Requiem, I would have noticed a large company had trademarked it already, albeit just in the US. When I checked in Canada, there was nothing either way. So fastforwad to this fall, facebook group started taking off, became the sponsor of several fitness athletes and an upcoming hip hop band. Started to draw more attention from that part. Turns out the other company is a big name in sponsoring hip hop.

Now even though they didn t trademark in Canada until starting in Late March and they acknowledge I was already in operation. I can either pony up big cash or walk away. Now I have to start with a new name and although I will be trademarking the new name right away and I don t lose my facebook supporters persay. It is a huge amount of work, money and time to get it all started again. 

May not happen to everything, but are you willing to take the chance? No worse feeling after all the work put into something and you get that cease and desist order.


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## sconrad84 (May 13, 2008)

damn man sorry to hear that...
I dont know though we agreed to buy out trademark right after we make enough moeny from this line and are confident that will be really quick. Plus the name of our brand isnt really "popular" itf that makes sense and is kind of out of the ordinary. However our logo is pretty basic. Hopefully it is unique


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## BWD (Mar 8, 2009)

My own fault though Steve, maybe even a bit of my own ego thinking I knew more thant I really did. Didn t really think my company name was all that popular either and with trademarks, they get tricky, you could find a name that comes up with no match on google but if it sounds similar to something else, you could have a fight on your hands.

Not trying to scare anyone, just hate for more people to go through this, trust me, it really did mess up my Christmas spirit.


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## sconrad84 (May 13, 2008)

oh man, well I hope Im one of the lucky ones who wait and dont get screwed. lol


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## kimura-mma (Jul 26, 2008)

Bruce,
Your situation is somewhat different in that you chose a name that was already registered. Even though you didn't mean to, you infringed on that registration. So, unfortunately, that is causing you to start over.

Steve asked about whether he should be concerned with someone else stealing the name since he is using it without registering it yet. But you are correct, he should definitely to a thorough search to make sure his name is not taken.


Steve,
Trademark registration doesn't prevent anyone from stealing your name and logo. Unfortunately, you will always be at risk, everyone is. Once your trademark is registered, it will be up to you to enforce it by issuing cease and desist letters and/or suing those who infringe on your trademark.

If you can afford to do so, you should definitely register. But the fact that you are already using it, you actually have common law trademark. That doesn't offer you the same legal recourse as federal registration, but it is something in the meantime until you register.


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## sconrad84 (May 13, 2008)

kimura-mma said:


> But the fact that you are already using it, you actually have common law trademark. That doesn't offer you the same legal recourse as federal registration, but it is something in the meantime until you register.


What? lol sorry can you explain that a little?
thanks


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## BWD (Mar 8, 2009)

Oh I agree Tim, but the situation remains the same, you still have to verify and the only fullout proper way is from trademarking.

And the common law part is something but not much really. According to that part, I could fight mine and probably win here in canada. But with the money several lawyers mentioned, yikes I m better off starting fresh. 

I just want people to be really aware of all the steps they should at least be thinking of, is all


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## kimura-mma (Jul 26, 2008)

Steve,
Since you are selling shirts with your name and logo, you are proving ownership of the name and logo. This is called common law trademark. If someone else is using that name and logo, you could try to sue them. It will be very difficult because you would both need to provide sales history to prove who used it first. Also, lets say you each sold your products in different states, it's actually possible that a judge would decide you each own the mark in the states you sold in. This would limit the states you could sell in. Obviously, there is a lot of gray area with common law trademark. It is definitely better to federally register the name and logo, which gives you full legal ownership and the best legal leg to stand on if/when you need to sue an infringer.


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## sconrad84 (May 13, 2008)

oh ok that makes sense I just searched the trademarks at uspto.gov. I did a "simple" search and typed in the name and nothing came up. Does that mean Im basically in the clear? Im registering it in less than a month so unless someone files it before that I should be good....right?


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## kimura-mma (Jul 26, 2008)

sconrad84 said:


> oh ok that makes sense I just searched the trademarks at uspto.gov. I did a "simple" search and typed in the name and nothing came up. Does that mean Im basically in the clear? Im registering it in less than a month so unless someone files it before that I should be good....right?


If nothing is coming up, then you should be ok. But do as thorough a search as you can, including misspellings. Also search google and yahoo and make sure no clothing brands exist with similar names. There is always an element of risk, as someone could oppose your application or the examining attorney could find a conflict. If you have any concerns, you should consult an IP attorney.


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## gearbranders (Oct 16, 2009)

kimura-mma said:


> If nothing is coming up, then you should be ok.


Just keep in mind if someone hasn't registered their trademark but can prove they've been using it first, you could still have a problem on your hands if your mark conflicts with theirs. Just because you don't find it in the USPTO database doesn't mean someone else isn't already using it somewhere. It's even possible someone has an application in to the USPTO but is hasn't been processed yet. I suppose the only way you know you're in the clear is if the USPTO accepts your trademark application for registration.


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## kimura-mma (Jul 26, 2008)

gearbranders said:


> Just keep in mind if someone hasn't registered their trademark but can prove they've been using it first, you could still have a problem on your hands if your mark conflicts with theirs. Just because you don't find it in the USPTO database doesn't mean someone else isn't already using it somewhere.


True, but as we already discussed, that would only give them common law trademark, which is difficult to prove. At best, they would probably only be able to protect in the states they can prove they have already sold in.


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