We have a opposition to our name we are trying to Trademark. We are a small struggling company and we cannot afford a lawyer.
4 attorney answers
You've disclosed no facts about the trademarks at issue or how long each of you has been in business, so it's unclear if this competitor has a registered mark they claim your proposed mark infringes on. This big company may have a good case to oppose your application, or they may just be trying to muscle you out of the market.
Consumer confusion is the main question in these disputes. It's usually proved through surveys, where consumers answer questions indictaing that they're unable to tell the difference between two like-named companies. (And companies' names/trademarks don't need to be identical to be confusing, they just need to confusing enough, and their goods or services need to be related enough, for a trademark examiner to think that the marketplace isn't big enough for this big company and you.) Surveys are expensive, but the big company may not have bothered to get one, so maybe they have no evidence of potential or actual confusion. So you might try to oppose this opposition by providing proof (though declarations from your staff that interacts with customers) that you've never gotten any indication from any of your customers that there's any confusion.
You could also try arguing that your consumres are relatively sophisticated (if they are) and can tell the difference between your companies/goods/services and aren't likely, as a matter of logic, to be confused.
Trademark proceedings really require a lawyer, but if you can't afford one, and if your recent trademark application means you just started this business, maybe you haven't invested enough in this name to need to defend it and you could start over with a new name (after you do what you can to see that the field is clear for the name you pick).
Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.
There are some fights that you should just not attempt on your own and this is one of them. You need to sit down with a trademark attorney and figure out if it is worth fighting or if you should let it go.
You may not know it yet but you have TWO problems: The Big Company's opposition to your trademark registration application that you write about and Big Company's soon-to-be asserted claim that your use of the applied-for trademark infringes its rights in its trademark.
The first is a (relatively) minor squabble over whether you can lawfully register the trademark you use. The second forebodes an extensive and costly battle over who owns the rights to use that trademark in the marketplace.
In short, Big company's trademark enforcement counsel will not be satisfied with your agreement not to register "your" trademark. They will demand that you not use it at all. That's the real threat you face.
As Ms. Koslyn notes, you need to decide whether the trademark you use is worth fighting over. If it's a key component of your marketing efforts (very few are) then you have no choice but to track down a competent attorney to assist you.
Minnesota has a number of law schools that offer intellectual property law classes. If you've decided to fight, you should reach out to the professors who teach those classes. Some may have students willing to handle your case pro bono as an independent study project (they will get course credit and the professor will supervise). Some schools even have "business law clinics" that handle routine business disputes such as trademark matters.
If you're hell bent on fighting but must go it alone then visit amazon.com and query its books database for "trademark trial and appeal" and buy a used copy of the most recent edition of the book that explains the opposition procedures (the rules recently changed so old books will NOT be useful).
It is not uncommon for Big Company's to pay trademark owners to change their trademarks. They will do so if the smaller trademark owner has senior rights in the mark. Only a trademark attorney can make that call in your case.
In sum, if your mark is important it is worth tracking down someone to help you. If it's not, then call the Big Company attorney and capitulate (but DO NOT admit that you have infringed the Big Company mark).
Without being able to afford the fight, your options are limited.
1) You could attempt to represent yourself and argue that the marks are not confusingly similar, or that you have been using the mark as a trademark for your goods or as your business name prior to the opposer's use of the mark. You can probably find examples and explanations of the opposition process online or at your nearest law school law library. If you do make it to a law library, McCarthy on Trademarks is a good source of information.
2) You could contact the attorney that is representing the opposer and attempt to negotiate a co-existance agreement which recognizes your right to use the mark. Here's a brief article on co-existence agreements...http://www.wipo.int/wipo_magazine/en/2006/06/article_0007.html
Best of luck.