What do you do if you are told that you infringed others' trademark rights?
You have been running business for years. One day, you received a letter commanding you to stop using your business name. Your blood vessels freeze up but your head spins 1000 rpm. In a minute, you arrive at a cost to change everything related to your business, which further sat your down.
What are the trademark rights?Federal Trademark Registration gives the owner of the mark prima facie exclusive right to use it on particular goods or services and to prevent others from using it. That's exactly why you receive the letter in the first place.
Defense of Prior UseHowever, trademark rights under United States Trademark Act are not so absolute.
Under Trademark Act, the date of filing an application establishes a registrant's date of "constructive use". Use of the same mark on the same goods or service can be challenged as infringement of trademark right. Yet, the ones who began use somewhere or applied for the mark prior to the registrant's applicant date. If the registration is less than five years old, and a prior user can show it (1) used the mark prior to the registration's date of filing and (2) used the mark poor to the registrant's use in the territory, the prior user may be able to legally continue to use the mark.
Furthermore, if the prior user's priority is based on the fact that it applied for a registration of the mark prior to the registrant's application date, the prior user is entitled to nationwide priority (assuming it is otherwise entitled to a registration).
What do you do if you are prior user?Back to our question, an attorney letter from registrant of your mark claiming their rights and commanding you to start over is not conclusive. Talk to your attorney about your options. More information can be found on www.lindaliangandassociates.com or call us at 954 892 5517.