Common Law Rights to mark

SC

Our company designed an original mark and began using it in commerce, but did not register it with the Secretary of State. We did, however, place the "TM" next to the mark on our products and website to notify everyone that we claimed rights to our mark. Approximately 6 months later, a competitor submitted our EXACT mark to the SOS office and was awarded a state trademark on the design and is using it in commerce. Can we have the mark overturned? We have really good evidence that we are the originators of the mark, including an invoice and letter from the original artist who designed the mark. The artist has original "created" dates on the electronic files. We also have copies of invoices from vendors that carried our product that preceded the filing by many months. We also have receipts of purchases for the products bearing our mark from internet sales that preceded the filing by many months. Could our "common law" rights be enough to overturn their filing if brought before the court?

Could our "common law" rights be enough to overturn their filing if brought before the court?

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Maybe. It will depend on the specific law of the state of South Carolina -- therefore, you'll need to talk with a local attorney who has experience with state trademarks in SC. However, in general, prior use alone is not always sufficient to nullify a later filing of the same mark -- determination of right in this case will be very fact-specific, so you should speak with a local attorney who can review all of the facts of the case.