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Old 03-03-2008
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Default Trademark Help
I have no clue about trademark law so I need someone to explain this to me. I've searched all over the internet and can't find an answer, or one that makes sense anyway.

When I decided on my company name I searched from every search engine I could find to make sure no one had the same name.

Now I get contacted by some guy from ?germany? who says I am committing trademark infringement because he has his office furniture company name trademarked as Vital-Office in the US.
I checked and he is being truthful.

My question is this:
Because he only trademarked "Vital-Office" does he really have a legal issue?



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Old 03-03-2008
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Default Re: Trademark Help
My first suggestion is to contact a lawyer. UGH! I know. Check your area law schools as I just found out last week that UMKC here has a free law clinic! If you just can't bear the thought then go to www.score.org and use the industry search for law services. I had some questions about sole prop and LLC...a mentor from there helped me for free.

My understanding in my state is that VAs wouldn't have a TM, they'd have an SM because they provide a service, not a product. That being said, if he has a TM and you should have an SM - the services are totally unrelated - AND your logo looks totally different than his it shouldn't matter. Also, it is my understanding that the TM is for actual design or logo, not the words and service. He would have to sue you and carry the burden of proof that you are taking business intended for his company because you are using his name...obviously not possible since your lines of business are unrelated. That is my non-lawschool educated opinion though!

Good luck with this and I can't wait to hear what will happen!

Make it a great day!

Sundi
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Old 03-03-2008
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Default Re: Trademark Help
Thanks Sundi.

I have been researching online since I got the email and have come to the conclusion that he has no basis.

To keep the peace, I have written a response to him (olive branch if you will) and I'm not sure I should send it.

Tell me what you think- his email is first, my reply below:
Dear Christina,

I found you in the internet while checking our Vital-Office presence on google.

Hope your business is running well.
Unfortunately you used Vital-Office which is a registered trademark in USA, which you can easily check at www.uspto.gov

I think you are a small business and didn't go for a comprehensive search on your business name.
Instead of asking my attorneys I contact you first myself to give you the possibility to explain.

Peter Jordan




Mr. Jordan,

I appreciate you contacting me directly in this matter but I need to ask how, exactly, am committing trademark infringement?
- You have trademarked "Vital-Office"
- My company name is "Vital Office Solutions"
- You sell office furniture
- I provide administrative services to individuals and small business owners in NYS
- My domain name is vitalofficesolutions.com
- Your domain in vital-office.net

Please provide details as well as law references for my review. I will be happy to cease and desist if there is an actual law being broken.
If, after further examination, you find there is no infringement I will provide an explanation and redirect link to your site on my home page for those consumers who may inadvertently land on my site

Thank you,
Christina Nelson
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Old 03-03-2008
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Default Re: Trademark Help
Mr. Jordan,
I will be happy to cease and desist if there is an actual law being broken.


I like your response except for the statement quoted above.

First of all it won't make you happy!

Second of all, it gives the impression that you will stop immediately, which I don't think you should.

Even if you read any verbage he refers you to I'd still contact a lawyer! Should you find out that a lawyer says you are fine it will be cheaper to pay him/her to find out for sure than any potential business loss you may face for having to change your name.

If you do end up having to change your name I would try to reach a middle ground with him by saying you'll carry the domain name for another year with nothing listed there but the option to change directions to point A - a furniture store - or point B - a VA service (under your new name and domain). My interpretation of your statement is that you'll stop immediately if he references you to something that proves his point. That would immediately leave you high and dry! Bottom line, make no promises.

Sundi
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Old 03-03-2008
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Default Re: Trademark Help
Gee, Christina, I think your reply is more than generous. Send it, and surely he'll leave you alone.
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Old 03-03-2008
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Default Re: Trademark Help
Sundi,
I was hesitant to send the email for exactly that line. I'll reword it a bit and then send to him. I just want him to show me something that disproves what I have found ALL over the internet.


Mary,
I can only hope!
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Old 03-03-2008
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Default Re: Trademark Help
Keep us updated Christina. I really wouldn't worry too much. I think if "Peter" (insert inappropriate joke here Sorry, I couldn't resist.) contacted his lawyer he'd be laughed at!

Sundi
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Old 03-03-2008
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Default Re: Trademark Help
Thanks Sundi. I needed someone to calm me down. I sent the email but changed the bottom to :
Please provide details as well as law references for review.

If you find there is no infringement, as a courtesy, I will provide an explanation and redirect link to your site on my home page for those consumers who may inadvertently land on my site.


I'll be sure to let you know what happens.
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Old 03-03-2008
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Default Re: Trademark Help
Hi Christina, what a lovely message to wake up to on a Monday morning....goodness. I feel for you! I definitely agree with Sundi that SCORE is a great place to go for a quick and free answer. I just posed my first question via their 'ASK SCORE' section and rec'd help within 24 hours.

With that said, here are some snippets from a few other threads that apply to your question (if you want to read the whole thread just search for 'trademark' in the search option in the menu across the top)

Here's an article that might help clarify any remaining questions that you might have about this.

Here's an exceprt from the article that directly addresses this very issue:
"Researching a name’s availability
So you see you can’t absolutely guarantee that nobody has the name you want, but you can at least try. The fastest and simplest way to start researching a name is to do an Internet search. Search about half a dozen of your favorite searchers and see whether or not the name you’re considering is already taken. You don’t want to name a business with a name that can cause problems later, because it confuses you with other businesses. That’s obvious, but how do you research a name to make sure there won’t be a conflict? There is no single sure way, but here are some suggestions:
  • Search the Web. Start with your favorite searches and see whether anything turns up on the company name you’re considering. You can also go to the U.S. Patent and Trademark Office website, or KnowX.com or similar searcher sites.
  • Search the Internet domain names. There are several searchers that offer access to the “whois” database of Internet sites. The most traditional site for this is the one at VeriSign, Inc. (formerly Network Solutions).
  • See an attorney. Since you probably want to talk to an attorney about the correct business entities and other start-up matters, you may also ask your attorney about checking on business names. Generally you want to do your own check first to catch any obvious conflicts.
Ultimately, you really protect your business name only by using it. Corporations are registered by states, and factitious business names are registered in counties. Registering a name doesn’t really protect it though, because the same name could legally exist in many other states, many other counties.
You could be Acme Corporation in Illinois and legally own that corporation in that state, but there could be another Acme Corporation in every other state, and every one of them is legal until you win a lawsuit proving that they are trading on the commercial interests you own. When you really get protection is when you use that name, and therefore when you find somebody else using it you can prove that you had it first, so they are trading on your name. There are lots of McDonald’s restaurants around, and McDonald’s can’t stop them from using that name if they had it early enough, and especially if they aren’t pretending to be a fast food hamburger joint. The attempt to confuse is very important."

-----------------------

This quote from Cory Doctorow at Boing Boing summarizes the purpose of trademarks nicely (Cory is one of the major forces behind the development of Creative Commons licensing and is well known in the inudstry):

"Trademarks are intended to protect consumers by ensuring that goods and services aren't misleadingly labeled. A trademark holder, say, "Coke," gets the right to sue companies that use the word "Coke" in their products and services in a way that would lead the public to believe that Coke was behind them.
But trademarks aren't "property" -- they aren't words owned by companies. They're the ability to use the courts to protect a company's customers. That's a pretty good idea: the public deserves to be protected from misleading marketing."

For more info, check out the following links:

Trademark Issues Blog (can similar blogs names coexist?)

Performancing (TM issues with blog names)

Chilling Effects (What exactly does a TM owner have rights to?)

----------------------------

Hope that helps and best of luck with this - please do keep us posted on what happens...
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Old 03-03-2008
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Default Re: Trademark Help
Thanks Tess.
Lots of info there.
I'm curious to see his response, if any.
He emailed on Sunday. Sundays are my "no computer" day so I didn't see his email till this morning.
I was instantly ticked off because I had researched my chosen name as thoroughly as I knew how to and trademark never came up. Although I searched for the full name, never thinking to search for partial names.

I'm pretty positive he has no basis and is just being an a**. The aggravation is just sooooo not needed.

I believe in Karma and the power of 3's (everything you send out into the world comes back to you 3-fold) so I know he'll eventually get it back.

Just wish I could see it for myself. LOL
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Old 03-04-2008
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Default Re: Trademark Help
Did you get a response back from Peter Schmuck yet?

Sundi
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Old 03-04-2008
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Default Re: Trademark Help
Nothing from him yet- Got a response from SCORE counselor and he asked for more info but mentioned that there is a good chance Peter will drop it.
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Old 03-04-2008
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Default Re: Trademark Help
Praise Be!

I don't think most people know exactly who they are taking on when they mess with one of us! We are some group to handle!

Let us know if anything else comes of it.

Sundi
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