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Roger
Roger, Attorney
Category: Business Law
Satisfied Customers: 25232
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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I work for a company that registered as a business in April

Resolved Question:

I work for a company that registered as a business in April 2011 and has the trade name (DBA) of Colibris LLC. We have currently found another organization within the same city marketing as Colibri. They are a nonprofit organization. Colibris LLC is not trademarked and we are wondering what are our rights as a company when it comes to the intellectual property and close relation of these names. Colibris and Colibri are the same word with Colibris being the plural of the word. Additionally, they are incorporating similar humming bird logos. Thanks!

Submitted: 5 months ago.
Category: Business Law
Expert:  Roger replied 5 months ago.

Roger : Hi - my name is XXXXX XXXXX X'X a Business litigation attorney. Thanks for your question. I'll be glad to assist.
Roger : IF the names of the companies are not identical, then the general rule is that you have to look at whether a reasonable consumer would mistake your company for the other, or vice versa.
Roger : The main things looked at are whether the companies are in hte same business
Roger : or
Roger : whether the companies are in the same area
Roger : or
Roger : whether the businesses are in the same trade/type of business.
Customer:

Is same area the same as locality? The companies are different (one being for profit and the other non profit) but the logo and name concepts are similar enough that I would suspect some confusion with consumers. Is there any protection to now file a trademark (assuming posting with initial use back in April 2011)?

Roger : It's all about whether there's a likelihood of confusion for a consumer. Here's a good link you can read about this issue: http://en.wikipedia.org/wiki/Trademark_infringement
Customer:

Oh, so that would be if we already had the trademark issued?

Roger : You have a common law trademark even if it is not a registered mark with the USPTO.
Customer:

To determine this would require suit?

Roger : A common law trademark is just as enforceable as a registered mark, so you've got that.
Roger : The main difference between a common law and a registered mark is that a common law trademark only covers your immediate business area where a registered mark gives one coverage all over the US.
Roger : Also, the registered mark allows one to sue in federal court, and a common law mark does not.
Roger : Here's another link you can read: http://en.wikipedia.org/wiki/United_States_trademark_law
Roger : If you were using the mark first, then you could issue a cease and desist letter to the other business, and if they don't stop using the name/mark, etc., then you would have to sue in order to enforce your claim/rights.
Customer:

And in suit, it would be up to a judge to determine potential customer confusion.

Roger : That
Roger : That's right. The court would determine whether there's a likelihood of confusion between the two businesses/
Customer:

Is there any affect on whether or not the industry is nonprofit or not? Additionally, would the state still continue to register names that are so similar?

Roger : It doesn't matter that they're a non-profit - - other than the fact that this could be enough of a difference to say that there's no likelihood of confusion.
Roger : Also, the state can register each separately as long as the names are XXXXX XXXXX
Customer:

Ahh. Interesting. Makes sense.

Customer:

That answers my question and was a big help. I appreciate your time so late in the evening!

Roger : No problem. Glad to help.
Roger : If you need anything further, please let me know.
Customer:

Absolutely. Thank you! Have a great night.

Roger, Attorney
Category: Business Law
Satisfied Customers: 25232
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
Roger and 2 other Business Law Specialists are ready to help you

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