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Stuart J
Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 20645
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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Hi we are an online fashion website OMG Fashion we have been

Resolved Question:

Hi we are an online fashion website OMG Fashion we have been trading for over 3 years with this name. I have received a letter today of a solicitor telling us to cease our website as their client has trademarked the name OMG in anything clothing related, but the client has no brand or service. So surely there is no confusion to customers? Also our business was set up before he regsitered it. Please help
Submitted: 1 year ago.
Category: UK Law
Expert:  Stuart J replied 1 year ago.
Can we have details of both companies please, addresses, websites, how long trading etc?
Customer: replied 1 year ago.

My business is www.omgfashion.com - OMG Fashion Ltd


Address -XXXXX eccles, manchester, m30 7dn


 


Trading for over 3 years


 


The other party dost actually have a open business that sells anything to do with fashion or the name OMG

Expert:  Stuart J replied 1 year ago.
handmade trademarked OMG with regard to fashion?
When was that done?
Customer: replied 1 year ago.

They registered OMG a few months after we set up our business, they are now saying they are willing to give us a licence to use the name OMG, but they want a list of everything we have sold with the OMG mark, but we dont sell anything with OMG printed on it, that is just our url and business name

Expert:  Stuart J replied 1 year ago.



Is this the company by any chance Leder & Schuh International AG?
Customer: replied 1 year ago.

No the company is C.R.C Innovations (scotland) Limited

Expert:  Stuart J replied 1 year ago.
I have done a search at the intellectual property office of CRC and OMG.

http://www.ipo.gov.uk/types/tm/t-os/t-find.htm

I can find no trademarks for any company beginning with CRC for any company in Scotland .

There are 11 pages of results for OMG.

Do you have the trademark number?

Are you convinced that the trademark is indeed trademarked?
Customer: replied 1 year ago.

They have a partner called AT Innovations Scotland LLP also try them

Expert:  Stuart J replied 1 year ago.
I now have that.

http://www.ipo.gov.uk/tmownerid/search?domain=1&id=214284&app=1&name=AT+innovations&postcode=

They registered the trademark and an image associated with it in May 2009. They have 11 trademarks registered altogether.
However it is not in the category of fashion at all but haircare class 3

http://www.ipo.gov.uk/tmcase/Results/1/UK00002515590

Hair care and hair styling preparations; shampoos; hair lotions; hair conditioners; hair masks; cosmetic preparations for the face and body; cosmetic nail care products; make-up products; creams, lotions, oils, powders and scrubs for face and body skin care; preparations for removing make-up; sunscreen and suntanning preparations; bath and shower gels; bath salts; bubble bath preparations; soaps; perfumery products; essential oils.

I would write back to them with printouts of the page and invite them to tell you on what basis they have trademarked OMG with regard to fashion.
Before you do that, you might want to make your own trademark application and get it in the system

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Customer: replied 1 year ago.

Yes it says that but also they have OMG under clothing and head wear

Expert:  Stuart J replied 1 year ago.

Well I cannot find it on the intellectual property office website. What is the trademark number?

Customer: replied 1 year ago.

Where would I find the trademark number?

Expert:  Stuart J replied 1 year ago.
Well, ironically enough, on the Intellectual Property Office website!
I can find no reference to CRC in respect of any trademarks that are remotely related
I can find 11 trademarks for AT I (S) L
I can find no reference to OMG for fashion, only for hair care.
I would get your logo and OMG for fashion application in now.
I would then write to their solicitors (or wait for them to write to you again) and invite them to tell you what the trademark number is XXXXX a thorough search at the IPO has failed to show any trademark for OMG in their clients favour for anything other than category three which is for haircare
At this stage, apart from changing your trading name (which I am sure you don’t want to do) or agreeing to pay them a licence fee (which you may not have to do) there is little you can do.
I have looked through all the other categories they have but I can see nothing that is clothing related.

Does that answer the question? Can I help further? Can I answer any specific points?
If you have not done already, please don't forget to positively rate my answer service even if it was not what you wanted to hear. You should now see a series of buttons which enable you to rate my answer service formally.
If you don't rate it positively, then the site keep your deposit and I get 0 for my time. It is imperative that you give my answer a positive rating.
It doesn’t give me, “a pat on the head”, “good boy” (like ebay), it is my livelihood!
If in ratings you feel that you expected more or it only helped a little, please ask.
The thread does remain open for me to answer follow-up questions after rating my answer service.
Customer: replied 1 year ago.

I have tried to get OMG in fashion trademarked but it was already took. Okay thankyou I will ring them and tell them what you have said.

Expert:  Stuart J replied 1 year ago.
if you tried to get it registered as a trademark, who has that trademark?
Customer: replied 1 year ago.

It just said its been took

Expert:  Stuart J replied 1 year ago.

I have found it now. Leave it with me I shall get back to you shortly.

when did you start your business?

Expert:  Stuart J replied 1 year ago.
I need to know when you start your business because the dates here don't quite add up.
Did you try to register the trademark after your business started by which time the other company had already registered theirs?
Customer: replied 1 year ago.

We started our business dec 2011

Expert:  Stuart J replied 1 year ago.
In which case, I would write back to them and tell them just that. Send proof that you have been trading longer than they have.
Provided you can prove that you have been trading longer than they have, then you have a defence to any legal action they bring.
The reason is that it would be grossly unfair for people to trawl the world looking for successful businesses that have not registered trademark, then registering the trademark and asking the already successful business for a fee or telling them to change their name.
The letter would be better in all honesty from a solicitor.

Does that answer the question? Can I help further? Can I answer any specific points?
If you have not done already, please don't forget to positively rate my answer service even if it was not what you wanted to hear. You should now see a series of buttons which enable you to rate my answer service formally.
If you don't rate it positively, then the site keep your deposit and I get 0 for my time. It is imperative that you give my answer a positive rating.
It doesn’t give me, “a pat on the head”, “good boy” (like ebay), it is my livelihood!
If in ratings you feel that you expected more or it only helped a little, please ask.
The thread does remain open for me to answer follow-up questions after rating my answer service.
Customer: replied 1 year ago.

my mistake they regsitered OMG before us, they also have other well known phases registered such as LOL and WTF this tells me they are not genuine trademarks and they do not have any actual businesses up and running that relates to OMG do I have a case with that ?

Expert:  Stuart J replied 1 year ago.
It doesnt matter of they trade with them or not, they own them and you are in breach.
It would have been wise to investigate this as soon as you found out that someone else registered the name. Too late now.
You are faced with name change or paying a licence fee.All you can do is negotiate. Sorry.
Customer: replied 1 year ago.

But they have had OMG for over 3 years and have not used the mark in what they registered it for? I have read that they would have to prove intent to use it if not after 5 years they can be struck off?

Expert:  Stuart J replied 1 year ago.
Proving intent is easy, if it is within the first few years.
It becomes difficult to prove after 10 years or if they have not used it when the time comes to renew it when it comes up for renewal
Before five years is up, they would have had you in court although they might not bother of course.
It really depends how much money you have to defend a court action.
It might be worthwhile looking at the company to see how substantial it is.
Customer: replied 1 year ago.

The company is trading as a technology company, its obvious what they are doing is not genuine, how is this even legal?

Expert:  Stuart J replied 1 year ago.
they may intend to go into fashion. That can be what they can argue that goes to court. By all means ignore their letter and let them take you to court and defended on the basis that you outline.
Please remember that I don't make the law I just regurgitate it
Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 20645
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
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Stuart J
Stuart J
Solicitor
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PGD Law. 20 years legal profession, 6 as partner in High Street practice