Posted by M. Arthur Auslander on February 16, 1999 at 05:04:01:
In Reply to: Common Law Trademarks posted by Mary McPadden-Dalton on February 15, 1999 at 20:21:23:
: We have a band named Gash. We were recently contacted by someone who said that they are now using that name and that we have to stop using it. They stated that they have a copyright on the name Gash which is my first question, is it possible to have a copyright on a band name? We had requested a Trademark search on 1/22/97 and they found no hits, we have documented proof that we have been using the name Gash before the other band. Do we have a Common Law Trademark on the name Gash? Can this other band force us to stop using this name? I would appreciate it if someone could help answer these questions so we can see if it is worth our while if a legal battle ensues, as a point of legal standing and for expenses to defend ourselves. Thank you.
There are common law rights in trademarks. The use of a mark establishes a common law right. If there is any form of interstate or international use, there is a right to a Federal trademark registration. A good trademark search without a followup application doesn't give much if any protection. If you have a prior use you are in a stronger position.
I enjoy saving clients money as long as I get paid for what I do. There may be things to do quickly that might help you. Litigation is very expensive so it would be best to look into what can be done to maximize your position and try to do it without having to go to court.
M. Arthur Auslander
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Auslander & Thomas-Intellectual Property Law Since 1909
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