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MShore Law
MShore Law, Attorney
Category: Business Law
Satisfied Customers: 25285
Experience:  Drafted Negotiated and/or Reviewed Thousands of Commercial Agreements
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Hello. I operate a online ecommerce site called videogametrader.com

Customer Question

Hello. I operate a online ecommerce site called videogametrader.com and publish a magazine called Video Game Trader.

I performed a trademark search on "video game trader" and discovered it was registered by a company, not in my state, in 1993. I have been in business since 1999.

Does this mean I will be forced to change my name? Can videogametrader.com be trademarked?
Submitted: 2 years ago.
Category: Business Law
Expert:  Robert replied 2 years ago.
You will not be forced to change your business name in the State that you operate in as you were registered with that State first. Such registration is State by State rather than national. Now, if you intend to go to this other State and attempt to register as the same name as the other business that has been registered there since 1993 then you will not be able to register as that exact name that the other business uses.

TRADEMARKS

The essential function of a trademark is to exclusively identify the commercial source or origin of products or services, such that a trademark, properly called, indicates source or serves as a badge of origin. In other words, trademarks serve to identify a particular business as the source of goods or services. The use of a trademark in this way is known as trademark use. Certain exclusive rights attach to a registered mark, which can be enforced by way of an action for trademark infringement, while in some countries unregistered trademark rights can be enforced pursuant to the common law tort of passing off.
It should be noted that trademark rights generally arise out of the use or to maintain exclusive rights over that sign in relation to certain products or services, assuming there are no other trademark objections.

Different goods and services have been classified by the International Classification of Goods and Services into 45 Trademark Classes (1 to 34 cover goods, and 35 to 45 services). The idea of this system is to specify and limit the extension of the intellectual property right by determining which goods or services are covered by the mark, and to unify classification systems around the world.

Here are a couple links that I believe you will find incredibly useful:

http://biztaxlaw.about.com/od/businessstartupsteps/tp/biznamesteps.htm

http://www.uspto.gov/trademarks/basics/index.jsp

I hope this has helped. If it has then I would greatly appreciate it if you will click "Accept" so that I can be compensated for my work. If you still need clarification on my answer then please let me know and I will do my best to further clarify.


Take care,



Robert
Customer: replied 2 years ago.
Hello,

I appreciate the quick reply. But I was hoping for more than a "cookie cutter" answer. Maybe I wasn't specific in my questions. I will try and clarify what I am looking for.

1. Can I trademark the name "videogametrader.com" and would I need to trademark it in every state?

You also state that i wouldn't have to change my business name because I was in business before the trademark but that isn't accurate. It appears the trademark was filed in 1994 and my business started in 1999.

Thanks
Expert:  MShore Law replied 2 years ago.
Thank you for the post, I am happy to assist you by answering your questions. Do you know whether the company holding the trademark still uses the name?
Customer: replied 2 years ago.
I am not sure but I assume so. It is registered in SC. But I don't see any business listings for Video Game Trader. The only status i can find is that it was filed on 2/10/93 and registered 10/31/97.
Expert:  MShore Law replied 2 years ago.
Thank you, XXXXX XXXXX correct o assume that is there is federal registration?
Customer: replied 2 years ago.
There is a federal registration, but it appears that the company that registered it might be out of business. It looks like the address listed in the registration is no longer valid. also the registration states: NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "VIDEO GAME" APART FROM THE MARK AS SHOWN. However the site doesn't let me see the "mark" but I may just now know how to get to it.
Customer: replied 2 years ago.
One more thing. One of the reasons I feel that this company may no longer be around is that I have had the videogametrader.com domain name, registered and in use since 2000 with no companies claiming the address. I would assume that if someone did have the Video Game Trader trademark and was actively in business, they would have wanted www.videogametrader.com.
Expert:  MShore Law replied 2 years ago.
Thank you, XXXXX XXXXX certainly a valid assumption as anyone holding and actively using the mark would want the domain you have secured. It is unlikely therefore you would be approached to discontinue your use of the mark or name.


Regarding your ability to trademark a .com name, it really boils down to how unique the word or series of words. For example, yahoo.com is distinctive enough where it could be the subject of a trademark, however, name.com could not as this is too generic of a name to warrant trademark rights. Your url is similarly generic in that the words are generic and the series of words not so unique (i.e. you did not invent a word or a new application of the words).

Please let me know if you need additional guidance.
Customer: replied 2 years ago.
Ok. It appears I probably will have a very difficult time trader marking "video game trader" as it is very generic. Also, after performing internet searches there are many video game dealers in other states that use the name "video game trader".

If wanted to open a series of stores called "VideoGameTrader.com" is there a way to protect the "video game trader" name? or is simply just going to be better to use the ".com" in the name so as to distinguish from other stores as I do own the domain. I think this is the last of my questions. Thanks.
Expert:  MShore Law replied 2 years ago.
It would be better to use the dot.com as that reduces confusion in the marketplace should the owner of the trademark later surface.
Expert:  MShore Law replied 2 years ago.
Please let me know if you have any follow up questions.
MShore Law, Attorney
Category: Business Law
Satisfied Customers: 25285
Experience: Drafted Negotiated and/or Reviewed Thousands of Commercial Agreements
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