# Trademarks-who has the right



## Walsfer (Aug 6, 2008)

Hi,
So, my brother and I started a t-shirt company with a specific name. We have not begun selling at this point, but we have filed for a trademark. We did background research at the USPTO website to see if there were any similar trademarks. There were not any, so we proceeded and filed for the trademark. A few months later, we found a online t-shirt company who sells t-shirts with almost the exact name that we have. They have not filed for a trademark, but obviously have sold t-shirts with a similar logo. What problems are we likely to run into? Thanks.


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## Daniel Slatkin (Jun 25, 2008)

If they can prove first use in commerce then they would win the dispute. It's all about being first to use not first to register. This is at least how I understand it.


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## JMBrown (Sep 21, 2008)

Daniel Slatkin said:


> If they can prove first use in commerce then they would win the dispute. It's all about being first to use not first to register. This is at least how I understand it.


Really?

I would imagine that having it registered is a big help to your efforts

Wouldnt it be their problem that they waited and lost the registration rights?

Interesting topic....


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## lindsayanng (Oct 3, 2008)

You also said its ALMOST the exact same as yours.. That means absolutely nothing in the trademark world.> That is why things like Cucci instead of Gucci and Oakeys instead of Oakleys are sold.. So if its not EXACTLY the same as yours, theres nothing you can do anyways.


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## Mark_S (May 21, 2008)

lindsayanng said:


> You also said its ALMOST the exact same as yours.. That means absolutely nothing in the trademark world.> That is why things like Cucci instead of Gucci and Oakeys instead of Oakleys are sold.. So if its not EXACTLY the same as yours, theres nothing you can do anyways.



Well I am not a IP lawyer but I have filed a few patents and just filed my Trademark and the above is not correct - for starters I would by the NOLO book on trademarks. Similar trademarks are a potential problem.


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## lindsayanng (Oct 3, 2008)

what are you talking about here??


> for starters I would by the NOLO book on trademarks. Similar trademarks are a potential problem.


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## Mark_S (May 21, 2008)

Similar names are not allowed by the Trademark office the NOLO book gives great info on the basics of trademark law. 

Also some info here on similar name issue

Am I allowed to trademark the name of my business even if it's the name of someone else's product? - Legal Issues - Ask Entrepreneur


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## Walsfer (Aug 6, 2008)

The above example is not directly applicable. Our situation is different. As I said, the other company who has a similar logo does not have a trademark nor any sort of copyright material. On the other hand, we have filed for it. The way I understand it, if two people file for the same thing within a close time frame, then the one who which is completed first will be given the trademark. Our situation is confusing though because we have the paperwork but have not sold any shirts yet. On the other hand, the other company has no paperwork but has sold shirts. Thanks.


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## Binary01 (Jun 2, 2007)

get your trademark in the process then you should be good.....


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## wormil (Jan 7, 2008)

Hayden, clearly you need to start selling shirts.  Or change your name. There was a member here who posted about having to change his business's name when a newer company trademarked it.


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## sundiata83 (Dec 30, 2008)

I have a case somewhat similar. What if the other company had registered for a trademark but had abandoned the name. I called the USPTO and they said if it was abandoned then it I could apply for it. Now what if this other company came back and started selling shirts again? Would I have to change my name since they could prove first use (although it's abandoned)?

It would seem to me that in Walsfer's case. The other company was using the trademark and already had first use. So although, Walsfer had registered the TM, the other company could take that away. Maybe if the other company is no longer using the TM, then Walsfer can keep it since it's registered?

Similarly to my case, since the other company abandonned the trademark, can they come back and take it once it's been given up?


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## Girlzndollz (Oct 3, 2007)

Since this is a legal question, it's best to consult a trademark lawyer, rather than ask on a t-shirt forum. There are also past discussions that cover copyright and trademark that you can find by using the search box at the top of the forum, none of which may apply to your particular situation, because alot of your situation will depend on what the *other* party decides to do about *you*, if anything. 

That is why it is best to discuss this with a trained professional. Talk to lawyer when you have a legal question. They will be the ones that can help you and even then, you could still get sued. But at least then, if you get sued and they said it was probably "ok", then at least you have someone that can go to court for you.

For further reading, check out:

Trademarks

trademark related topics at T-Shirt Forums

Have a good night and good luck to you. =)


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## flirteegirl (Apr 10, 2007)

Yes, trademarks are full of legalities and you don't want to waster money on something that may be denied. CALL AN ATTORNEY, YOU WILL BE HAPPIER IN THE LONG RUN or you can simply apply for the trademark and see what happens. I would choose the attorney.


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