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[jane]

Hi

I am a bit confused. How does common law apply to Internet based businesses? If I opened a solely Internet based business (no physical store etc in any geographic location), if someone trademarked my business name but I claimed first use how far would my rights to the name extend since I trade with customers all over the country and  don’t actually have a local physical store? Surely it could not be proposed that I be restricted to selling items online only to those customers who reside in the same geographic location as me/where my business is registered?? Sorry if this is a stupid question!

THANKS!

jane

[M. Arthur Auslander]

Dear Jane,
I am surprised that I do not see a clear picture as to what common law is. My recollection is that, legally the common law is all the law and decided cases that make up a body of law that is not covered by statute.

Once there is a statute then the law includes the cases that interpret the statute.

The start is, what do you want to do? E arly L egal A dvice I s N ot E xpensive™. Then, what can you do?
Reality Check®.
Is it feasible?

M. Arthur Auslander
Auslander & Thomas-Intellectual Property Law Since 1909
3008 Johnson Ave., New York, NY 10463
7185430266, aus@auslander.com
ELAINE's Workshop®
E arly L egal A dvice I s N ot E xpensive™
Reality Check®

[Karen Dudnikov]

Have you notices that Auslander responds in mysterious ways and always inserts a commerical for his "service"?

I would suspect any lawyer who is offering "free" advice while handing you his business card.

My experience with him proved to be not so informative or accurate.

Karen
tabberone

[JimIvey]

TM vs. (R)....

This is getting pretty far away from my competency, but hopefully I can give some sense of where to look for better answers.

The "(R)" (federal registration) gives you certain presumptions in enforcement that you don't enjoy with "TM".  The presumptions are things like first to use in commerce (the senior user is the term, I believe), the mark is proper (not a generic, descriptive, a geographic designation, a sirname, etc.), and applies to the entire U.S.

In contrast, I believe those are all open questions and threshold issues that must be established by the trademark owner during enforcement.

Your specific concern appears to be with geographic scope of trademark protection.  Normally, using common law trademarks rather than registered trademarks limits you to the actual regions in which you use your mark.  If your use of the mark in marketing your goods/services is through the Web, I'd say you'd have a pretty easy showing that your mark is used throughout the entire U.S.  However, that doesn't help you with any of the other threshold issues.

I hope that helps.

Regards.