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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Intellectual Property Law
Satisfied Customers: 41220
Experience:  I assist my clients with IP questions that arise in their daily course of doing business.
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I own a business selling "apps". Recently I discovered a company

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I own a business selling "apps". Recently I discovered a company selling an app in the same app store whose name differs from mine by a single letter. They posted their "app" for sale just today. I have not filed for a trademark but have used the name since fall of 2011. I understand I can file an "in use" trademark. Is it possible to sue them on the basis of an in use trademark? I also found out the company is based in Australia. Can I still sue them to at least prevent them from using the name in the US? The names are XXXXX XXXXX that it would be like two hamburger businesses called "McDonalds" and "McDonald", which strikes me as beyond ridiculous similarity.

Thank you for your question. Please permit me to assist you with your concerns.

It is indeed possible to sue based on an 'in use' copyright. Since your product has been in the domain longer and potentially acquired 'secondary meaning', their app name, being 'substantially similar' can be shown to be infringing upon your property rights. So yes, you can sue for potential damages, and you can file for an injunction demanding that the sale of their product be stayed until it substantially changes from yours and the name of the product changes also.

Good luck.

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