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Author Topic: cease and desist - infringement - confusion  (Read 618 times)

qbanchin

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cease and desist - infringement - confusion
« on: 07-12-11 at 05:43 am »

i just got a cnd letter from the competiton. it says customers are getting us confused with them.
example: their name "determine" our name "detta", we both sell roller skates.

they trademarked before us

1 page of our website has a similar look/feature

roller skates do not look the same

do they have a case?


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BobRoberts

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Re: cease and desist - infringement - confusion
« Reply #1 on: 07-12-11 at 10:59 am »

You should seek the assistance of an attorney that handles Trademark matters.  The legal stadard is likelihood of confusion, where no actual confusion is necessary.  Evidence of actual confusion is not a good thing (whether, and how much confusion is a consideration, however).

There are many factors that need to be considered. First, the devil is in the details, so a qualified TM attorney will compare the two marks (which you should NOT post here) to determine whether they are close enough to be of concern, in light of the alleged confusion.  There may be 8 or 10 different factors that are considered in this analysis. 

Also, how long that you've been using the mark is certainly an issue that would be weighed by the attorney.  I.e., the C&D writer has a duty to police their mark, so if you've been using the mark for years (at least 3 or 4)with no communication from the other side, and were unaware of their mark when you adopted yours, you may be on better footing.  Again, seek assistance. 

Good luck.
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OMG IP

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Re: cease and desist - infringement - confusion
« Reply #2 on: 07-12-11 at 11:00 am »

Maybe.  There are sometimes 20 factors that come into play.  A "confusion" analysis is not limited to the mark and/or goods.

Are they common law protected? or do they have a registration?
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DEBOER IP
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John M. DeBoer
 



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