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Roger
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Category: Intellectual Property Law
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Hi Kirk, Im feeling a bit "worried" that since this other

Customer Question

Hi Kirk,

I'm feeling a bit "worried" that since this other person has a blog titled "Relationship Architect" but I cannot find that it is actually (TM)'d by a general search that if I start to use the title with the (TM) behind it, that she will find it infringing on her rights.

She lives in South Africa per my research and does something very similar to what I do...however, my spin is different. She doesn't sign "Relationship Architect(TM)" behind her name though.

I just ran across something called a "Common Law Trademark"...what exactly is that and would she be protected under it?
Submitted: 2 years ago.
Category: Intellectual Property Law
Expert:  Roger replied 2 years ago.

Hi - thanks for looking me up again!

A common law trademark is one that has not been registered with the US Patent and Trademark Office. According to the USPTO, "federal registration is not required to establish rights in a trademark. Common law rights arise from actual use of a mark and may allow the common law user to successfully challenge a registration or

application." http://www.uspto.gov/faq/trademarks.jsp#_Toc275426712

I don't know what the law is in South Africa, but in the United States, a common law trademark provides one all of the rights that a registered trademark does. All the registered trademark does is allows you to sue in federal court before judges that are familiar with these issues instead of being sued in a state court where the judge likely has no experience with trademarks.

Instead, the first in time is the first in right when it comes to trademarks. Also, you have to consider the name in addition to the font used, color of letters, etc.

As we discussed before, the botXXXXX XXXXXne is whether or not a consumer would confuse one site for the other. If you have different names for your business, then the likelihood of mistaking one for the other is not very great. Also, you can claim a common law trademark on your name.

Roger, Lawyer
Satisfied Customers: 27242
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Customer: replied 2 years ago.

Thank you Kirk for such a prompt and thorough reply.


 


The names of our companies are different, while the content or intent of our sites are the same, I'm feeling confident that using the ™ behind my title will be most advantageous.

Expert:  Roger replied 2 years ago.
Great. Please let me know if you have any additional questions. Thanks.

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