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Err...I suggest opening a PACER account...

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diannedawn Member Profile
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diannedawn   Friday, 10/02/15 12:28:40 PM
Re: badbadbad post# 6712
Post # of 10031 
Err...I suggest opening a PACER account...
then read the latest letter to the Judge...
Then read up on "common law trademarks"...
or at least read the earlier posts I made about the subject.
"Registration comes with many benefits. However, one of those benefits is not the exclusive right to use your trademark. If someone else has already been using the same or a confusingly similar mark in commerce prior to your use of the mark, they are called a Senior User in trademark law. The Senior User has common law trademark rights that are superior even to the owner of an incontestable Federally registered trademark. Furthermore, if someone else started using the mark in a different market area after you did, but before you obtained federal registration of your mark, they too have rights superior to yours.

Once you obtain a Federally registered trademark, you obtain the exclusive right to use that trademark IN ALL AREAS WHERE THE MARK IS NOT ALREADY IN USE. So, if you chose well and picked something nobody else is using anywhere in the U.S., you will have the exclusive right to use your mark for the goods or services you selected in your registration. But, if others were already using the mark before you obtained a registration, then you can only stop them from expanding their market into new areas.

The moral of the story is that if you are considering using any mark in your business you should consult a trademark attorney and have them do a search for potential conflicts. If you have already been using the mark for some time, at least an attorney can advise you of the potential risk factors and options you may have to enforce your mark against others."

""Many businesses and individuals do not know that trademark rights arise not only from registration with the United States Patent and Trademark Office, but from simply use of a trademark in connection with goods or services. These rights, or common law trademark rights as they are known to lawyers, come from the continuous prior use of a mark in commerce. But common law trademark rights are not preferred, as they extend only to the places where a trademark has been used in commerce. Additionally, they do not offer the benefits of federal registration with the United States Patent and Trademark Office, such as the ability to recover profits, statutory damages, attorneys fees, treble (triple) damages for willful infringement, national priority, and the right to use the ® to give notice of rights in a mark.

Common law rights require prior actual and continuous use in commerce. To prove common law rights in a mark, one must show that it was the first to use the mark within a geographical area. Courts look at many factors in determining whether one has acquired common law rights in a mark: widespread distribution, public association with the mark, whether consumers associated the mark with the source of the goods, whether the mark has become distinctive, and whether the mark owner has exercised control over the quality of the goods and has used the mark in a trademark sense.

Common law rights are severely limited because they are restricted to the geographical area where the mark was used. Common law rights, when recognized, will protect a mark holder as against infringement only within that specific geographical market. If another mark-user comes along and registers the same mark on the federal level, the subsequent registrant will have rights in that mark in all areas but the limited geographical area where the prior mark-holder had used the mark in commerce, or the area where the common law mark holder would reasonably be expected to expand. Simply put, federal registration is preferred if one seeks nationwide protection for a trademark because it will put the entire nation on notice of your claim of trademark rights in the mark.

Do not be deceived by the term “rights” when in association with common law rights. Common law rights are a right of last resort."

You might want to read about the "Burger King" dispute...
"Burger King is a restaurant founded by the Hoots family and operated by Burger King LLC of Illinois in Mattoon, Illinois, United States; it is not related to the fast food chain Burger King. The restaurant's founders claim it is the "original" Burger King and predates the fast food chain. A 1968 court case between this restaurant and the larger Burger King chain is a well-known case in United States trademark law regarding the Lanham Act."

BVAP wants to claim "prior use"? Claims "common law trademark"?
GREAT! But I don't see the USPTO canceling the trademark they granted Breathe llc, anymore than the Burger King trademark was cancelled!


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