Q: TM search & no results, google search showed 2 others with Instagram accts w/ same name
The 2 hits on google were Instagram accts; one created last month and the other 4/2017. I started mine late 2016 early 2017. One is a graphic designer who created a logo for a "client" but then this month after contacting me about same name, listed shirts for sale on his Instagram acct. The other one just created his acct last month and then reached out to all of my followers asking to follow him. Does this impact my ability to get mine trademarked? I have an ecommerce website/store. I want the TM app in today.
A: Respectfully, you seem to be seeking the assurance of an attorney that your proposed trademark is "safe" for purposes of a trademark registration application without actually hiring or paying for an attorney--and without disclosing what that proposed mark actually is.
You are not going to obtain the legal opinion of a trademark practitioner by asking a question like that on a site like this.
Before filing any trademark application, it is advisable that you retain a knowledgeable trademark attorney to conduct for you a proper and full clearance search for opposing, prior, or competing potential uses of your term, searching not only the Federal register and domain name and other internet or commercial uses but also state trademark registers and other sources.
An attorney conducting this search for you will review the much more vast results that a proper search provides, analyze the risk of failure in filing an application for the trademark registration of your proposed term, and provide you an opinion letter weighing that risk so that you can make a risk-based decision to file or not to file your application.
It is encouraging that the results you have located yourself evidence more recent use than your own as, in the U.S., trademark registration is granted on a "first in use (in interstate commerce" rather than "first to file" (an application). However, a proper search surely needs to be conducted.
I would recommend you retain a knowledgeable trademark registration attorney to assist you. Slowing down a bit and doing this properly will save you months and months of time if your application finds opposition that could have been avoided from the outset, not to mention filing fees.
Most trademark attorneys practice nationally, as I do, and offer free consultations, often by phone or video, for clients located outside of their specific geographic areas.
A: In its most general sense, actual use of a potential trademark is what creates rights and priority over others. Thus, the rule in successfully registering a trademark is that ownership of a mark goes to the first-to-use, not the first-to-file. It is still important to get your application in as early as possible, but it's more important that you are able to designate that you were the first to use that mark in commerce. If successful, you should be granted the trademark and will then be able to assert your rights over others who are using the same mark within your "stream of commerce."
If you need further assistance with this, feel free to email me at: Jason@altviewlawgroup.com
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