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dkennedy
dkennedy, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 5998
Experience:  15+ years of practice, including intellectual property--primarily copyright law
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I need help in assessing whether we have a case against a business

Resolved Question:

I need help in assessing whether we have a case against a business that is using the same logo as us. We do not have a TM but have been using the logo, a gold '7'. for years longer than they have.
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  dkennedy replied 1 year ago.

dkennedy :

Hello,

dkennedy :

There is a lot of "gray" areas in the trademark area. Has your trademark "7" been used in a distinctive area, such as a city or definable geographic area? Has the other user registered the trademark?

Customer:

Ours has been used worldwide as is theirs I believe

Customer:

This is theirs http://www.solgar.com/SolgarProducts/Solgar-No-7-Vegetable-Capsules.htm and the following is ours http://7cream.ca/7-cream/. Different types of products but we are working on a supplement that would have the same gold 7 we have always used and that they are now using.

Expert:  dkennedy replied 1 year ago.
And neither of you has registered the trademark, is that correct?
Customer: replied 1 year ago.

their trademark is Solgar, not the gold 7 and we dont have a TM either. However it is confusing to the consumer as both products are in the same department, ie HABA.

Expert:  dkennedy replied 1 year ago.
You can acquire the use of a trademark (and I am assuming all of the signs of a TM have been met of course) by using it first, or registering it first at the Patent and Trademark Office ("PTO"). 15 U.S.C. � 1127(a). You were the first to use the mark, and therefore, have the rights to it. If you now register it, that would bolster your rights. Unfortunately, however, to get them to stop (cease and desist) from using the mark might take a court order. The reason I asked about the geographic area is that if yours was confined to one area and theirs another, it is a bit of a weaker case. For instance, the name "Judy's Diner" might be in Phillie, Denver, and New York, but since it would be local, would not be a trademark violation. Yours clearly is, however.
Customer: replied 1 year ago.

Thanks I guess the next step is to try and register the trademark

Expert:  dkennedy replied 1 year ago.
That would be the best route, as I said, it would bolster your claim.
dkennedy, Lawyer
Satisfied Customers: 5998
Experience: 15+ years of practice, including intellectual property--primarily copyright law
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