Legal Question in Intellectual Property in Texas
trademark
I registered a domain name
''xyz dot com''.
in June 2006. Lately I found a
German company registered 'xyz' as
a trademark in 2008. Which one
should be
considered first in use? Actually the
goods and services are different
between the German company and
my company. Can both coexist?
1 Answer from Attorneys
Re: trademark
Yes, both can exist at the same time. The key test for trademark is whether two marks are "confusingly similar" so as to mislead the consumer into thinking that one mark means the same thing as the other. Since you and the German user have different products under the trademark, its unlikely that the marks will be "confusingly similar." Marks are also limited as to geography such that how far away the uses of the mark are made enters into the equation. You're here, the other guy is in Germany - not much of a problem there, unless/until one of you starts marketing in the other's backyard. The other key part of trademark law is simple: use it or lose it. The sanctity of one's trademark is largely determined by how often its used (along with how distinctive the mark is - but that's for another discussion!). Hope this helps a little bit.
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