fail to file a trademark application 7 years ago

[Ken H Michaels]

Hi all.

I have used a trademark on my goods for 8 years. Yet, a company recently use the trademark anf file an application in the PTO.

I'd like to hear your comments and thoughts on the followinf questions:

1. can I file my mark and register it now? If so, do I have an exclusive right against them after the mark is registered?

2. can I stop their usage prior to my registeration? Or I only can stop them until got my registeration. Need to compensate for their loss owing to their change of such mark?

Thanks in advance.

[M. Arthur Auslander]

Dear Mr. Michaels,

You still have lot of rights but they cannot be spelled out comprehenively in a forum. Rememer, ELAINE's Workshop® E arly L egal A dvice I s N ot E xpensive™
Reality Check®.

[Ken H Michaels]

My question is: do I have an exclusive right against them after the mark is registered, without any compensation?

[Harris]

Hi Ken,
           if your products have acquired a certain reputation in the market during these 8 years, then you surely have a claim over the trademark even if it has not been registered.
           I dont think you need to pay them any compensation.On the contrary, you can restrain them from using your trademark to market their products and also proceed against them for "passing off".
          This is not legal advice.Just my two cents.
Harris

[Dave41]

I'm not sure the analysis would be that simple. There are many facts that would affect the anaylsis.
For instance, does the owner of the second mark use the mark on goods that are similar to your goods? If the goods are different and there is no likelihood of confusion, then both parties can likely use the mark.
Also, what was the market for your product (local, regional, national) when the second mark was registered or put in use? You may have acquired common law rights to your mark in a certain geographical area and the second user may have rights in other areas.

[Dave41]

Mr. Auslander is correct that this forum will not provide you with a clear answer to your questions.
You probably need to consult an experienced trademark attorney. Such a person can gather and consider all the relevant facts before offering an informed, professional opinion.

[M. Arthur Auslander]

Dear Mr. Michaels,

File you application asap. There are statutory rights and common law rights. Your wasting time here you need to act. Why don't you find and IP lawyer you can trust and pay to get the value you need?

The PTO  will also help you but they can't give you the legal insight that you may need. If you are trying to save a buck, you may be losing more than what you save in legal fees.

If you knew you had cancer would you go on the web or find a doctor you could trust? I don't trust doctors but I have been able to find doctors that I trust anf feel comfortable with. E arly L egal A dvice I s N ot E xpensive™.

[steve]

I am in the same boat, guess I should file a trademarkhttp://www.pharmnet-rx.comnow that I have read this. : )

[M. Arthur Auslander]

Dear Steve,

I don't trust doctors easily nor do I like to pay but I find doctors that I can trust and am please to pay them for what that do.

It's the same with lawyers. If you thought you had cancer what would you do? There is legal cancer.