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[TrademarkDummy]

Company A has been using a common law trademark since 1999.  Company B (same industry as Company A) filed for the trademark in 2001 and it was registered in 2003 to Company B.  Company A can still continue using the mark, correct?

Now, what if Company A started using the trademark in 2002.  Although Company B filed the application in 2001, it was not registered until 2003. Can company A continue to us the trademark?

Now, lets say that Company B sues Company A for infringement.  What sort of proof does Company A have to produce in court to prove that it started using the mark when it said it did?

[JSonnabend]

Company A has been using a common law trademark since 1999.  Company B (same industry as Company A) filed for the trademark in 2001 and it was registered in 2003 to Company B.  Company A can still continue using the mark, correct?

Company A can continuing using the mark to the exclusion of Company B in any geographic market where Company A's use predated Company B's filing date.

Now, what if Company A started using the trademark in 2002.  Although Company B filed the application in 2001, it was not registered until 2003. Can company A continue to us the trademark?

Company B can exclude Company A's use anywhere Company B begins use of the mark.  The filing date is the constructive date of first use in commerce.

Now, lets say that Company B sues Company A for infringement.  What sort of proof does Company A have to produce in court to prove that it started using the mark when it said it did?

Anything that would tend to demonstrate that fact.  For example, advertisements, sales receipts, customer affidavits, may all be useful.

The foregoing explanation is a bit simplified, but generally accurate.

- Jeff

[TrademarkDummy]

In the case where Company B can exclude Company A above, is there a time limit for Company B to take action against Company A?  Can A do anything except lay down and die?

BTW, the longer B takes to sue A, the more time there is for A's proof to disappear with age.  

[JSonnabend]

Eventually, the senior user of the mark may be found to have forfeited its trademark rights through failure to enforce its rights.  It's a very fact bound question that considers consumer perception of the mark, among other issues.  Laches may be a defense as well, but I wouldn't hang my hat on that defense, as a rule.

- Jeff