Quote:
Originally Posted by marketsmart
...i have used the name in establishing a commercial intent since 2009, but i have had neither a site or a product prior to 2010.
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So basically you did
not use the name in commerce? Just because you were first to coin a name / register the domain, etc does
not automatically give one TM rights...
Did you file an
Intent to Use (ITU) TM application back in 2008-9? Or was it a regular TM app? An ITU TM app often allows for the filing date to count as the first date of constructive use assuming various steps are followed, such as reaffirming the ITU TM app every six months, etc.
Quote:
Originally Posted by marketsmart
i dont know if that makes a difference. in my mind i had a clear plan since 2008 to develop this product and then this other company just came in and created an ecommerce site that is reselling others products..
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Maybe they were scanning domain registrations, or somehow learned about your idea, or just got lucky / coincidence.
Usage
in commerce is ultimately what counts - sounds as if they beat you to the punch ... and that's assuming their name is truly confusing similar to yours, which it may not be - sure it may seem so to you, but would it to the average person seeking out your product? Something to consider.
With all that said, you could send out a C&D letter and see how they respond ... perhaps, they'll stop using it and/or offer it to you at minimal cost ... but it's just as likely they'll dig in and ignore your demand, and perhaps instead fight back by filing their own TM in the U.S. ...
Again, the date of first use in commerce is what counts, not the filing date, except in the case of Intent of Use applications, in which the filing date may be considered as the date of first use in commerce / constructive use.
Ultimately it comes down to what's your budget and the importance of this matter to your business ... TM challenges can get very expensive ... in my view, especially if the other party has decent financial resources, is to seek to work out a settlement.
Ron