Legal Question in Intellectual Property in Maryland

I have been developing a smartphone application (app) business since 06/2010. I just checked the USPTO and there are two 'live' trademarks that relate to my chosen name. The first is a logo that would look nothing like mine. The second competes in general software development/educational software development (much like I plan to do) , but I focus on smartphone software (for the iPhone, for now). It is a government agency in England that has filed the trademark with a priority date of 10/27/2010 and their version of the name has all capital letters. Mine, on the other hand, is a mixture of both capital and lower case letters. Can I still proceed given the differences in business focus and name case? Thank you so much for your help! It would tremendously hurt the investment that has been made so far if I have to change everything.

I have this name registered in the State of Maryland and am the only one to have done so.


Asked on 12/02/10, 5:44 am

2 Answers from Attorneys
Elliott Alderman The Alderman Law Office

You are right to be concerned. A state name registration does not establish trademark priority, but use in commerce may. Since confusing similarity, the standard for trademark infringement, is so subjective it is difficult to make a determination without actually looking at the exact marks and descriptions of goods/services. It would also be advisable to do a trademark search to establish how crowded the field is.

I would be happy to assist you, if you call my office during regular business hours, (202) 973-0188. www.thecontentlawyer.com

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Answered on 12/07/10, 5:58 am
Kevin B. Murphy Franchise Foundations, APC

As a Franchise Attorney I can tell you if both marks are in the same class (software) you will likely have problems. Changes in name case mean nothing in most cases. Consult with a good business or franchise attorney in your area for specific advice.

Mr. Franchise - Kevin B. Murphy, B.S., M.B.A., J.D.

Franchise Foundations, a Professional Corporation

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Answered on 12/07/10, 10:45 am


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