I Have A Question... About a Trademarks on a Logo of a Site

Alright,

Say someone owns the domain: www.bookrag.com

Alright, say they only have a DBA which only covers them in their country they registered it with at the county clerks office, and they used Book Rag as their registered name.

Ok, so say this bookrag.com company has a logo on their website they got created customized by someone, but they never get it trademarked, can another company copy it and still use the logo and get it trademarked before bookrag, even though bookrag had created first (never got it copyrighted/trademarked though) and use it legally, and then sue bookrag for using it?



So in all, it's like: I get a logo made for my site, and I never get it trademarked or copyrighted, and then someone happens to come along and find out and then hurrys up and get it copyrighted/trademarked in their name, and now can sue me (the creator) if I continue to use it...

 

It's funny that you mention this. I just looked at the trademark website, www.uspto.gov, the other day on this very topic. The question was,

Do I have to register my trademark?

No, but federal registration has several advantages, including notice to the public of the registrant's claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration.

What are common law rights?

Federal registration is not required to establish rights in a trademark. Common law rights arise from actual use of a mark. Generally, the first to either use a mark in commerce or file an intent to use application with the Patent and Trademark Office has the ultimate right to use and registration. However, there are many benefits of federal trademark registration.

What is a common law search? How can I do one? Is doing a common law search necessary?

A common law search involves searching records other than the federal register and pending application records. It may involve checking phone directories, yellow pages, industrial directories, state trademark registers, among others, in an effort to determine if a particular mark is used by others when they have not filed for a federal trademark registration. A common law search is not necessary but some find it beneficial. Telephone numbers for search firms that perform these searches for a fee can be found in the yellow pages of local phone directories and through an Internet search.

How do I contest someone else using a trademark similar to mine?

There are several ways to dispute use of your trademark by a third party. Depending on the factual situation, the Trademark Office may or may not be the proper forum. You should consider contacting an attorney, preferably one specializing in trademark law. Local bar associations and the yellow pages usually have attorney listings broken down by specialties. Time can be of the essence. For information about proceedings before the Trademark Trial and Appeal Board, click on TBMP.

Basically, you don't have to register to have rights to it. Since you're already being sued, all you really have to do is prove that your website was up and running prior to the other person's being up and running and that you had the logo made prior to the other person having it. You can usually prove this through an e-mail or through the date that the logo was first saved on your computer.