Someone has my trademark :(

Ok, so someone has my trademark, how much of a difference in the name is difference enought? I plan on making clothing from it and so does the person that filed for their trademark. If their name was "People" would "People Inc." be a big enough difference? misspellings are also not a big enough difference I think, correct? my design is completely different than the graphic that they have.

any advice would be great, thanks!

He with the most gold wins...

Again, a question that makes lawyers rich. Trademark is an area of law where the person with the most lawyers generally wins. Case in point, Vince McMan (World Wrestling Federation) versus the World Wildlife Fund. Which one wound up using WWF?

There's no real answer to your question. It all depends on who prevails in the court battle. Chances are, if you have to ask, and you can't afford the best justice money can buy, you should find another name...

ok...so i looked up the status again, can someone explain to me what all this means? i have read some things about him having 6 months to respond or something like that, what do you all think??? thanks!

Current Status: A non-final action has been mailed. This is a letter from the examining attorney requesting additional information and/or making an initial refusal. However, no final determination as to the registrability of the mark has been made.

Date of Status: 2004-08-09

Filing Date: 2004-01-14

here is some more info

PROSECUTION HISTORY

--------------------------------------------------------------------------------
2004-08-09 - Non-final action mailed

2004-08-05 - Case file assigned to examining attorney

2004-06-21 - TEAS Change of Correspondence Received

2004-01-21 - New Application Entered In Tram

A non-final action simply means that the USPTO has done something with the application -- perhaps some initial "rulings" or the like -- and has asked the applicant for more information, or to change something, or something like that. Basically, what happens when a trademark is applied for is that an application is filed, the USPTO reviews the application, makes suggested changes or requires more information, repeat as necessary, until the application is approved, denied, or abandoned.

The 6-month time frame is pretty common for a response to an office action. Generally, it takes typically 18 months from the date of application for an approval -- and that's only if everything goes pretty smoothly. It can take up to 36 or 42 months (I can't remember what the max time is off of the top of my head) in certain cases.

so if i have been using the trademark name before him, then now is the time to file something saying that i have been? and could someone please point me to the forms for this? thanks a lot btw

You can look up the procedures for contesting an application in the Trademark Manual of Examining Procedures -- specifically section 1715, and the various subsections of that section. The particular section can be found online here: http://www.uspto.gov/web/offices/tac/tmep/1700.htm#_Toc674575.

However, although you didn't state in your original post why you feel you own the mark that the other person is trying to register, this subsection may be relevant to your question:

"1715.01(b) Issues Inappropriate as Subject of Letter of Protest

The following are examples of issues that are not appropriate to raise in a letter of protest:

(1) A third party claims earlier common law use of a trademark but does not have a federal registration or previously-filed pending application for that mark. The ex parte examination process is limited to considering registrations and prior-pending applications. Earlier common law use, state registrations and other claims based on evidence other than federal registrations and prior-pending applications for federal registration are not appropriate for presentation to examining attorneys during ex parte examination.

(2) A third party claims that the applicant is not the proper owner of the mark. This issue requires proof that is beyond the scope of authority of an examining attorney to require during ex parte examination. In re Apple Computer, Inc., 57 USPQ2d 1823 (Comm'r Pats. 1998)."

Basically, if you feel that you own the trademark due to common-law or state law rights by virtue of prior use, you cannot raise those claims in an ex-parte letter of protest to the commissioner. Basically, if this is the case, you'll have to wait for the trademark to be granted or denied; if the trademark is granted, then you'll have to sue the trademark owner in court, and let the court sort out ownership of the mark.

ahhh, i understand now, thanks!