Re: trademark and patent for an existing product
« Reply #5 on: Sep 17th, 2007, 5:29pm »
on Aug 13th, 2007, 9:23am, PA wrote:
How do you know for sure the OP's rights are senior to those of the registrant's?
No one knows for sure, but we're only answering based in the scenario described, not on whether their story is factual or not.
Disclaimer -- Take my advice lightly, it could be slightly inaccurate as I'm going by memory on books read.
Wholesaler -- the way I understand trademark: anywhere you have sold your product, you have automatic trademark rights to it without having to officially register anything. The other company (if they indeed trademarked the name legally), can only sell in areas where you haven't yet.
Each state approaches the issue a bit differently. Some might give you statewide protection and deny that company from selling there without infringing on your IP, other states might restrict your product's "trademark zone" to whatever city's limits you've sold it in.
Trademark's purpose is to avoid customer confusion of one seller's product with another's. So if that company has taken your product's name, you would legally still be able to continue selling wherever you already have, and be able to challenge their IP infringement in those areas, but you won't be able to sell elsewhere new if they registered nationally.
When you officially trademark a name, it gives you power to collect damages for infringement. Otherwise, you can probably only force that company to discontinue sales in your area. Also, study the difference between state and federal trademarks, as which you choose determines just how widespread your protection is.
Have luck in that.