Q: Is the cease and desist order I was sent an actual legal document, and is it a baseless claim or not?
I'm the host of a paranormal radio show and I use a promotional poster to announce my guests each week. During a recent show, a woman from MA messaged me saying I was infringing on her trademark because the slogan for my radio show was similar to what she uses for her website and apparel, which is also paranormally specific. The slogan for my show is "We're never truly alone." Her's is "We Are Never Truly Alone". I told her she couldn't copywrite a phrase, and all she could do was copywrite the design of the phrase, and mine was different from her's. She then sent a lawyer after me with a cease and desist order, only it came from a gmail account, and there was no law firm listed that she worked for on the document. It looked like just a Microsoft word document. There were several errors in her order including my address and the fact that my company and the radio show are two separate entities. She put down her attorney number as MA BBO #678297. Her status shows she's "inactive".
A: She may have a trademark in that phrase, which is completely different than copyright. Your best best is to look up the phrase in the USPTO directory to see if it’s actually a registered mark.
For purposes of a trademark, there wo d be no difference of your use her use of “we are” vs your use of we’re”. If she does have a valid Registration then you can be subject to a lawsuit.
The fact that her “lawyer” is listed as inactive only means that that person specifically won’t be able to file the lawsuit, but that doesn’t affect the validity of the cease and desist (assuming her registration is valid). A cease and desist letter is just a notice to an infringing party. It doesn’t even have to come from a lawyer.
If you need further assistance feel free to email me at: email@example.com
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A: Here is a link to the USPTO's Trademark search engine. http://tmsearch.uspto.gov/bin/gate.exe?f=tess&state=4808:yyjglt.1.1
You do want to check whether the woman filed a trademark application with the USPTO which is pending or whether she has a registered mark. However, trademark protection is not limited to federal registration with the USPTO. People can acquire trademark rights by using a mark to indicate the source of their goods or services. These "right" come about under the common law, i.e., court decisions. Depending on how broadly a person "uses" their mark, they can acquire common law rights within that geographical area.
Likewise, a number of states allow for trademark registrations within their state limits. It would be good to consult with an attorney within your state who is familiar with trademark law to see how best you should proceed.
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