Re: Counterfeit tm infringement

Subject: Re: Re: Counterfeit tm infringement

Comments:
: : I own a intent to use application for a liquor product, lets call it "My Mark" that has been given a notice of allowance (filled 11/96), additionally I have (very limited - not to general public, but constant) common law use of the mark since '94. : : A major food service company filled a federal app (6/94 with date of first use 3/94) for "Golden My Mark", a liquor co successfully cancelled the food service co's mark in 1996. The food service company, I am assuming , took a loan on the mark to finance the protection of it to the TTAB because the last listed owner is the banks. : : The food service company has, subsequent to, the opposition instituted, utilized "Fresh My Mark" along with "My Mark" in the marketing of their product since 96 (according to their lawyer). : : I personally sent a "Cease and Desist" letter to the food service co. and their lawyer, their lawyer stated that the food service co has common law rights in "My Mark" since 3/94 and that I can be subject to an Infringement case if I commence use of "My Mark". : : Because a liquor product is an ingredient, their are regulatory laws which they licensing for, and it is my understanding that the foodservice co. did not obtain their license till '96, thusly making their operations illegal. : : The food service co. has purchased a federal registration on a portion of "My Mark" and misused the (R) on materials that display "My Mark" since they only own the "Mark" in "My Mark". The "Mark" portion of "My Mark" has become a generic term for the food item that they make, and they own either registrations or fed apps for all the other line extentions of "Mark". : : The food service co. has well over $600 million in sales, their lawyer is a partner in a 300 person law firm, and I am a nobody with a intent to use of "My Mark" which is designed to specifically describe my delivery mechanism (packaging) which is also covered by a federal intent to use app with notice of allowance granted. : : I postulate that I can attempt to claim that the food co is not the owner of the common law rights since the banks are now the owners of the mark, additionally if the food service co. operated without the proper federal and state licenses with respect to the liquor, they operated illegally, and that would affect their rights, in that their rights would be nullified if their operations were illegal(?). : : Any suggestions? : You have big problems even if you are right. You have to find a way to support litigation. : M. Arthur Auslander : E arly L egal A dvice I s N ot E xpensive : ELAINE's Workshop (sm): : Auslander & Thomas-Intellectual Property Law Since 1909 : 505 Eighth Avenue, New York, NY 10018 : 212-594-6900, fax 212-244-0028, aus@auslander.com

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