someone else is claiming a trademark before I register it

[whatisthelaw]

thelaw,

so I am looking to register a trademark for a goods and service as a website that will act as a directory of information regarding various trendy web applications, serve as a virtual community, provide news, updates, etc. this was an idea I came up with a year ago but didn't have the financing to get it off the ground.

however after looking, I noticed that someone else is claiming trademark (tm) on the particular word or phrase I want to use. their intended use appears to be as a cartoon for comedic purposes.

so in this matter who is right, and who has a right to file a successful u.s. trademark application with valid registration?

 

[cyjeff]

Usually, the first person to file wins.

 

[whatisthelaw]

even if they've been using it for the last 6 months ago?

 

[Michael Wechsler]

It's not always that simple. Usage is important too, especially if you want to preempt someone from using a name. Usage for federal purposes doesn't mean it's on your stationary. It means you've conducted interstate commerce. That said, if someone has used a business name in Brooklyn for 3 years and someone else files for a federal trademark, they will have a problem obtaining federal protection against this existing business that may have acquired "common law" rights to use that name in their locality. In addition, if this business is well known there may be additional difficulties. Filing is an important issue but not always the only one (I'd prefer first filing though too!)