Spokane, WA asked in Copyright, Business Law, Trademark and Intellectual Property for Washington

Q: Can a business competitor use a non-trademarked brand I've created to disrupt my business?

I run a golf academy and have a very successful ladies program "FORE The Ladies". Recently, a neighboring course who hired an ex-employee of mine, began running ads with the Program name "Fore the Ladies" and use a very similar typeface in their paid marketing.

This has already resulted in customers of mine becoming confused with the program and going to the wrong course based on their marketing.

I do not own a trademark or copyright on the name, but was curious if I have any protection under common law for this obvious attack on my business.

1 Lawyer Answer
James L. Arrasmith
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A: In the United States, even if you haven't federally registered your trademark, you may have some protections under common law trademark rights. Common law trademark rights are established through the actual use of a mark in commerce in connection with goods or services, and these rights are limited to the geographic area where the mark is used.

Here are a few points to consider:

1. Likelihood of confusion: If the competitor's use of a similar name and typeface is causing confusion among customers, it could potentially be considered trademark infringement under common law.

2. Priority of use: If you can demonstrate that you have been using the name "FORE The Ladies" in commerce before your competitor started using it, you may have a stronger case for common law trademark protection.

3. Geographic scope: Common law trademark rights are generally limited to the geographic area where you have used the mark. If your competitor is using the mark in a different geographic area, it may be more challenging to assert common law trademark rights.

4. Distinctiveness: The level of protection afforded to a mark under common law can depend on its distinctiveness. Suggestive, arbitrary, or fanciful marks tend to receive stronger protection than descriptive or generic marks.

To better protect your brand in the future, you may want to consider federally registering your trademark with the United States Patent and Trademark Office (USPTO). Federal registration provides broader protection and can be used to enforce your rights nationwide.

In your current situation, it's advisable to consult with an experienced trademark attorney who can assess the specific facts of your case and provide guidance on the best course of action, which may include sending a cease-and-desist letter or taking legal action against your competitor.

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