Legal Question in Technology Law in South Carolina

Re: Questionable Trademark problem

You need to consult a trademark attorney, since you need an analysis of your specific situation.

Here are some quick comments:

You wrote: A sole proprietor business has trademarked two words describing/naming a product that I don't believe is a viable Trademark.

Comment: Whether or not the trademark is viable depends on factors such as whether the trademark is "generic", "descriptive", or "suggestive, arbitrary or fanciful".

You wrote: This proprietor (internet based business) claims I'm in violation of their trademark by including the two-word Trademark on my website.

Comment: We would need to know your trademark and how you use it.

You wrote: I've read through the TESS site, which is horribly confusing. Can I file a complaint or appeal on a Trademark? What if I can prove this person isn't the originator of the two-word description/name (i.e. someone else was using it before them)? How do I fight for my right to use these two words on my website?

Comment: If the other party has already received a trademark registration, you can attempt to "cancel the trademark" either in federal court or through the Trademark Trial and Appeals Board, especially if the other party received the registration less than 5 years ago.

If they have not yet received a registration, you may be able to "oppose" that registration.

That's all a trademark attorney can tell you without more details. Feel free to contact me at [email protected] if you would like assistance.

Re: Questionable Trademark problem

Many "cease-and-desist" letters from lawyers representing trademark owners are not worth the paper and ink used to generate them. My own policy is not to send a C&D letter unless the client has already authorized me to commence litigation if the recipient fails to satisfactorily resolve the issue, but many lawyers sling them around hoping to scare people into compliance and without any intent to pursue the matter. However, it is a very bad idea to ignore such a letter. You should provide the letter to a trademark lawyer, together with a description of your actual use of whatever trademark you are using, for an evaluation of your potential liability.

Best wishes,

LDWG