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[Whale]

Hey there, this is my first post on this forum and I wanted to say that its a really good idea to have something like this because TM law can get a bit murky, like in this situation:

I registered a website over a year ago, and have since been constructing it on a local server. The project is a Media Journalism site, reporting on film, video games, and other pop-culture. While I worked on the site and infrastructure, I put up a placeholder at the website so that when you go to the site, you see the name of the site and the logo(designed by me), and nothing else. If it matters the site is a (.com)

The site is nearing completion and I was in the process of filing to form an LLC for the site, and registering the name/logo as a trademark. In my searching however I stumbled across another site, with a VERY similar name, and more distressing, an almost identical logo (a mirror image of mine with different colors). It was established within the last 6 months, small time, they are basically a "blog" with no advertisements, and therefore presumably no revenue.

Given that information I have a few questions:
Does having my name and logo appear on my own .com site qualify as "use in commerce" in reference to common law rights?

Does their site, given that it is technically functioning qualify as "use in commerce" and therefore common law rights even though they  are merely displaying information with no income?

So basically if i register a trademark now, and attempt to get them to change their logo, who will be better off legal -wise. Is there any need for me to register my logo? or am I in the clear because mine existed first (and I can prove it).

As a side note, given how similar the name and logos are, I cannot help but feel pretty sure that they "stole" my idea, I know my name and logo existed first, on the web, is that enough?

[JSonnabend]

Much of the answer depends on what your site shows in addition to the name/logo.  If you have provided at least some journalism in connection with the name/logo, then you likely have technical use and therefore seniority and registerability.

Even if you don't have technical use, you might have done enough to create analogous use.  If so, you may still have senior rights, but not enough to register your mark(s) at this time.

The lesson here, for other readers, is once you have selected and cleared your branding (i.e., your name, logo, etc.), it is best to file an intent to use application to "preserve" your rights.

- Jeff