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Subject:trademark help From:Kristen Case <KLCase -at- AOL -dot- COM> Date:Tue, 26 Aug 1997 09:48:48 -0400
I previously replied privately, but felt my answer was incomplete, so I
thought I'd take another shot and reply to the list...
A trademark is the right to use a particular word or group of words in
association with your product, in a particular geographic area. If someone
has used your "trademark" previously in a particular geographic area in
connection with a similar product before you used it, all the TMs in the
world won't give you the right to use it--the prior user will have superior
rights. A "TM" symbol doesn't really protect you...it just puts people on
notice that you're claiming an intellectual property right. Actual use (and
first use) of the mark is the only thing that really protects you.
However, there is an exception to this general rule--registering the mark
gives you the right to use it in association with your product nationwide,
regardless of whether you've already used it in every geographic area of the
country. But, to register it, you have to have used the mark "in commerce"
somewhere previously (although I believe there is an exception for marks that
you intend to use, if you actually use them within a certain time-frame--I
haven't reviewed the US Code lately. Perhaps this is your situation, and
that's why the TM is being used instead of the R?) Another advantage to
registration--if someone has used the mark before you, but only in a limited
geographic area, and they haven't registered it with the PTO, you will have
the right to use it nationwide (except perhaps in their area) even though
they were really the first user.