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[hamsol]

Hi thread,

I have a problem (hold down the laughter). I have registered a trademark with the USPTO. It was registered (fully) in 11/2004 with the intent to use. The mark will be used as a real estate companys name. I am currently in Real Estate, as an agt. My goal is to open up my "own" real estate company, as soon as I aquire more cap/more experience etc.

Problem, I have been using the markas a nick name in my advertisement for real estate. For ex., the mark is "123 Real Estate" and I have advertised myself as the "123 real estate agent" .... alot of people have come to know me as "123" ... so when I open up the business people will have heard of the name in the past.

I have done just about every single bit of advertisting, except T.V. ... for ex: radio, newspaper, concert promotions, pens, flyers, bus benches, "full size" car logos, internet etc. Again the advertisement was done as "123 Real Estate agent"

Well, the name has gotten out so much that now I have a person(s). a husband and wife Real Estate company with employees using the name of "123 Realty", and they are located just 60 miles from me. We are in the same "listing area of service". Their compnay has been in business for approx 18 months .. they started the "123 Realty" AFTER the mark was fully registered.

I have personally contacted this person, and told them to stop using the mark. They offered me a partership in their business, I declined. They said they had spent alot of money, resources and time in the business and didn't want to change the name ... and asked if there was any other options. After consulting with family and attorneys.. I informed "123 Realty", that they could buy the name from me, but at a price I figured was fair. documenting the my time, expenses in promoting the name, domain names (3) and giving up rights to the name. Since, I have gave these people the only two options I am interested in, they have broke off communication with me, and continue to use the name "123 realty" and generate (verfied) business. A Cease and Desist letter has been reg mailed, faxed, and emailed to the company. And no action on the part of the other company.
I did find out that this company applied for and recieved a State Trademark (california) for use of "123" in any real estate services .. granted in 2005.

Is there anything I can do? attorneys are VERY expensive, and truthfully I cannot afford the 10k-15k fees for service up front. I need to file a Federal Injunction against this company, and "  " relief for damages, so I can recover my legal expenses. I would also like to punish the person(s), but that is second hand. I need to put a stop to the person asap before the name and my reputation (future) become a wash.

[Lyza]

Registrations are not granted under an intent-to-use ("ITU") basis.  You can file under ITU but you must prove use of a mark for your goods/services before it can be registered.  

Not all attorneys require a 10-15K retainer and in this instance, I would highly recommend that you secure representation of counsel as without it you may have a very tough time forcing an infringer to relinquish their brand without the strident input of an attorney.  Good luck.

[Patrick Speckmann]

Yes, I am using the mark in goods/services ... I expressed the wrong meaning of intent to use in my post. I have items that were and still are being used that have the mark in use.

Are there or can anybody help point me in the direction on a legal aide business that could assist me in filing a Federal Injuction and relief. And since it is going to be a Federal Case, I dont believe it has to be state specfic of my residence, which is California. but that I would have to file complaint in Sacramento ... the jurisdiction I am in and so is the infringer.

[Lyza]

Patrick,

Most large cities have local bar associations and many have Volunteer Lawyer programs to assist those unable to pay for but in need of legal assistance.  The LA Bar Association, I believe, does have a volunteer lawyers program.  Wherever you are, look up and call your local bar association and ask.  The volunteers are usually very fine attorneys who giving of their time either to meet pro bono requirements from their state bar associations or because they are truly caring individuals who want to assist those with marginal income.  

They may, however, want proof of income or lack thereof as volunteer lawyer programs are not for those who just want to avoid paying for legal advice.  Just something to remember.  Also remember that attorneys are like everyone else.  He/she has bills to pay and an income to make just like you and the majority of attorneys do not make massive salaries.  Your goods/services are not free and neither is his/her time.

I hope you can find a volunteer who is well versed in intellectual property law.  Good luck.

[Lyza]

Patrick,

As a P.S., let the attorney tell you what you need to do and/or jurisdiction you need to file within.  It can be very difficult and more time consuming to try to help someone who thinks they know the law when they don't.  Just tell them your problem and let them work through it.  And ALWAYS BE ABSOLUTELY TRUTHFUL, warts and all.  A friendly word of caution.

Again, I wish you well.