Legal Question in Entertainment Law in Texas

Question Regarding Trademark and Servicemark

I am the drummer in a band that was started in 1994. We played many shows around Texas, and released our first CD in September of 1997. In 1999 we discovered that another band had started using our name. We had a lawyer send them a cease and desist letter, but they ignored it. We were unable to raise the money to take the matter to court. They received a trademark and servicemark from the USPTO, but their first stated use in commerce is April 1998. We are still unable to raise the kind of money that it would probably take to take them to court. We have invoices from the manufacturer of the CD ( showing a ship date of September 1997). We also had to apply for a barcode to sell the CD, and we have records of that also. We also have the CD itself, which was released in 1997. Do we have what we need to keep our name if challenged in court? Should we send them another letter explaining to them the documents we have to show our prior use? Any help would be greatly appreciated.


Asked on 2/25/03, 3:40 pm

1 Answer from Attorneys
Jeffrey Look Look Law Firm

Re: Question Regarding Trademark and Servicemark

Yes you want to keep that kind of proof if for no other reason you can defend yourselves against them should they try to sue you for infringement. As an alternative to a lawsuit, you could try to simply cancel their trademark registration before the PTO. You should be aware that if you do nothing and the registation passes its fifth anniversary, you will never be able to do anything about them because the registration will become incontestable. Call me if you want to talk more.

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Answered on 2/25/03, 3:56 pm


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