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Can I exercise my Common Law Trademark Rights

Discussion in 'Copyright, Trademark, Patent Law' started by DanielleG218, Mar 8, 2009.

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  1. DanielleG218

    DanielleG218 Law Topic Starter New Member

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    My jurisdiction is: Michigan

    I uncovered something today that would be any business owners worse nightmare, especially if you have worked as hard as I have to build a reputation and following based on your name and service. If anyone has any suggestions or advice as to how I could handle this it would be greatly appreciated.

    I have been operating my business under the same name here in Detroit since December 2007. I had taken all of the right steps to protect my name here within the state. Trademarking our name has always been on my mind, but just nothing that I could afford. About 3 months ago I discovered that someone had opened a studio around Nov of 2008 under the same name as our company in Florida offering the same services. With the internet being so big now I am 100% sure that this person was fully aware of our existance because we own the domain, facebook, myspace and youtube domain and much more. Not to mention we are always at the top of the search engine on GOOGLE when you look for our type of service. It was a red flag that I needed to trademark the name when I started to hear about this other place over the internet and started to get inquiries on our website about a florida location about 3 months ago. I started my research, educated myself on how the process worked and saved my money to began the process.

    I went to began the process and they had already filed about a month ago. Needless to say I was crushed, emotional (i am pregnant now so you can just imagine just how emotional I am) and very upset. I am not sure that there is anything that I can do legally, but if so I am prepared to do so. I have worked so hard (opening a second location this summer) and I can't imagine changing my business name.

    I know that business is business and it's unfortunate that they beat us to the punch, but on the outside looking in and knowing that this person had to be fully aware of our existance I just could not do that if I were them.

    If anyone has any information that could help me that would be greatly appreciated. I plan to seek legal advice first thing in the morning. I keep seeing something about commom law rights and wanted to know if anyone has any details. We have been using the TM with our name for over a year now, own the domain name, have been operating successfully under this name for almost 2 years.
     
  2. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Don't panic! You can object to their filing and approval. Part of the process of applying for a trademark is the assertion that you believe it is valid and doesn't infringe upon the marks and rights of others. If it is half as obvious as you say, the federal trademark will not be approved by this company. Do your homework and don't worry. This is part of the trademark prosecution process. Good luck!
     

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