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Am I infringing??

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    EventOneEventOne subscriber Posts: 0

    Anyway, the Edson Wright Company have just discovered me and are not happy that our websites are so similar and that our product has a nearly identical name.  When I searched for the domain name I wanted, I did not think to look if any similar names like theirs was in use.  My question:  Am I infringing on their trademark?  I have not filed for a trademark of my own.
    Hi.The current company I work for has had experiance with trademark infringment from competitors who just where ignorant about our existance.  The offending company gets a "Cease and desist" letter from our company.  If the offending company continues they will have to show in a court why they can use our registered trademark, name and likeness or have to pay damages to our company. 
    If you really think your logo, name and likeness is different than the company who claims you infringed thier trademark, then I suggest you go see a lawyer who knows the laws in this area.
     
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    patentandtrademarkpatentandtrademark subscriber Posts: 103
    The cease and desist letter is pretty common - though not legally required.  Most companies want to avoid litigation.
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    ManyonManyon subscriber Posts: 0
    Hello James,
    I recently received official trademark notification for my business and found another business is using the same name in the same industry but in another state.
    What are the pros and cons of pursing trademark infringement and why or why not should businesses consider this?
    Personally, I don`t feel threatened by the other use and think perhaps there is room to collaborate. However, I`d love to hear your thoughts on the matter.
    Thanks in advance for your consideration.
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    patentandtrademarkpatentandtrademark subscriber Posts: 103
    It can be the same type of reasoning we go through in deciding whether to remove a single very small weed from the rose garden.  One very small weed maybe won`t hurt the roses much.  If you come back to the garden in a month or a year, will there still be only a single very small weed?  Once the weed grows and multiplies, the group of big weeds will at some point have a measurable impact on the sun and nutrients available to the roses.
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    VideographyVideography subscriber Posts: 401 Silver Level Member
    "Should I fork over all that cash and register "Cozy Cookies" (or Jennifer`s Cozy Cookies)?"Jennifer - I am amazed - no, make that disturbed - that the majority of the responses to your question were along the lines of "Hire a lawyer" or without any attempt at compromise that you should cave in and surrender.I am happy that you were able to make a mutually agreeable compromise with the other company.  It could be a lucrative boost for both of you.What do you mean "Should I fork over all that cash"?  Ten dollars per year (per domain name) is not a lot of cash to protect your future position.  When I registered my domain name, I also registered similar sounding names as well as names that might factor into my business plan in the future.  Alltogether, I have one main domain name with a hosted web site and six registered domain names that simply forward to my main site.Steve M.
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    MrTeaMrTea subscriber Posts: 1
    Suppose I have a business name of Red Bean Coffee House and there is a
    trademark on "Red Bean" and it`s for a cleaning business. You can see that
    the trademark is only on part of the business name I would want to use and
    is in a completely different industry. Would you recommend I trademark
    "Red Bean Coffee House" and/or "Red Bean"? When advertising could I use
    "Red Bean" if I just have "Red Bean Coffee House" trademarked?

    Lastly, how much would it cost to retain a lawyer to advise me on how to
    proceed? I`m planning on starting a business and would hate to move
    foward with my business only to find out 2 or 3 months later that I`m
    infringing.
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    tm4smallbiztm4smallbiz subscriber Posts: 0
    Mr Tea,The key thing is that the registration needs to match how you use the name.  So if you advertise as "Red Bean Coffee House" that is what needs to be in your application.  Since the other "Red Bean" is in a completely different industry so it shouldn`t be a concern.this is not legal advice - provided for discussion only
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    JenniferJennifer subscriber Posts: 1
    What do you mean "Should I fork over all that cash"?  Ten dollars per year (per domain name) is not a lot of cash to protect your future position.  When I registered my domain name, I also registered similar sounding names as well as names that might factor into my business plan in the future.  Alltogether, I have one main domain name with a hosted web site and six registered domain names that simply forward to my main site.Steve M.[/QUOTE]
    Hi Steve.  I was talking about registering a trademark for "Cozy Cookies."  I think that costs $325, which is a lot for me.
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    JenniferJennifer subscriber Posts: 1
    Suppose I have a business name of Red Bean Coffee House and there is a trademark on "Red Bean" and it`s for a cleaning business. You can see that the trademark is only on part of the business name I would want to use and is in a completely different industry. Would you recommend I trademark "Red Bean Coffee House" and/or "Red Bean"? When advertising could I use "Red Bean" if I just have "Red Bean Coffee House" trademarked? Lastly, how much would it cost to retain a lawyer to advise me on how to proceed? I`m planning on starting a business and would hate to move foward with my business only to find out 2 or 3 months later that I`m infringing.
    Great questions.  I was wondering if I should register "Cozy Cookies", "CozyCookies" (without the space),  or "CozyCookies.com"  My logo contains the latter, but I can see myself using the logo without the ".com" in it also.  I went to see what "Ask.com" had registered, and they`ve got both "Ask" and "Ask.com" registered.  I`m thinking that every separate use of your name should be trademarked separately.  This would get expensive though.
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    tm4smallbiztm4smallbiz subscriber Posts: 0
    Note that LegalZoom does not actually represent you, they are not providing  legal services.  They are filling out forms on your behalf.  My understanding is that they would not counsel you in any way regarding the issues involved.
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    patentandtrademarkpatentandtrademark subscriber Posts: 103
    If an attorney is solely interested in seeing the legal profession as a whole make more money, LegalZoom would be recommended.  I have made some serious money from "fixing" and litigating mistakes made by people that wanted to save themselves a few hundred bucks on one of their most valuable assests - their trademark.  If I am trying to maximize my profits in the long run, I say:
    1.  do it yourself via LegalZoom, and
    2.  call me when it is time to file the appeal at the appeal board or defend the lawsuit.
    Been there.  Done it.  An ounce of prevention is worth a pound of .....  Save the money, do it right the first time.
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    patentandtrademarkpatentandtrademark subscriber Posts: 103
    I probably have been watching too much W.  I have also been bailing my clients out of messes that could have been avoided with a little foresight. 
    Part of being a smart business person is knowing your limits.  Yes, you actually have limits - we all do.  If I attempt to do my own dental work or fix my own car, I deserve what I get.  If that`s being "fearful" then so be it.  I am afraid to do my own dental work.  I am afraid to fix my own car.  I don`t have the specialized knowledge to be competent in those areas.  I like my teeth.  I go to a dentist.patentandtrademark2007-2-2 9:4:18
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    stevesteve subscriber Posts: 14
    People, I think we need to stop and take a deep breath.

    First of all, you`re not up against a General. You know, General
    Motors... General Electric... even General Mills. Edson Wright is two
    ladies in a garage. No disrespect to ladies or businesses that start in
    garages.

    Given the date of their TM and domain name filings they seem to have
    been doing this about 6 or 7 years. They`re doing a good thing by
    donating every 13th cookie to a child in a hospital, shelter or foster
    care. I have no idea what resources these ladies have but it`s not
    likely their business is earning enough cash to buy you out for enough
    money to launch you on to the next venture.

    It seems to me the greatest value to this whole thread is instructional. I appreciate those who have contributed thoughtfully.

    A lot of people enjoy lawyer bashing. How many other professions have
    spawned their own category of jokes? Sometimes as a startup, with
    limited resources, the legal stuff gets left for later. If things go
    well, you survive long enough and make enough money to go back and take
    care of that stuff. It`s a risk you take just to get something going now.

    Right now you need to focus on what is most important. Don`t let this
    distract you from the task at hand, building your business.
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    patentandtrademarkpatentandtrademark subscriber Posts: 103
    I certainly agree that there is a certain "chicken and egg" problem in legal services for business.  You need the money to pay the lawyer, yet would benefit from the advice in order to get the money to pay the lawyer in the first place.  No question.  What I have found in my own experience is that I have the money for everything that I really think is important - not necessarily everything I want. 
    In order to hire an accountant to do my taxes every year [even though in theory I COULD do my taxes myself], I have to forego certain things I would kind of like.  I forego taking my family out for dinner each time I want to.  I don`t buy my $5 cup of coffee each time I want to.  I don`t buy each and every legal book I might like to have or register for each legal seminar I would like to attend.
    I personally do not believe that people don`t have the money to hire a lawyer to file a trademark application properly.  Just me - I simply don`t believe it.  They have not come to the point where they think that expense is important enough to move the trademark to the top of their list.  They don`t understand the value of the "good will" they are building in their business.  They are not stupid - just uninformed.  It`s easy to say "I can`t afford it" when we really want to say "I don`t think it is important enough."
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    stevesteve subscriber Posts: 14
    I agree with James, that we find a way to pay for the things that really matter to us.

    Part of my problem is that, frankly, not all my ideas are worth protecting.  Don`t anyone tell my wife I said that. 
    Sometimes I`m not sure how much I like a given idea until it`s had some
    time to grow on me. If I like a new idea enough I might be willing to
    spend a few bucks to hold a domain name for a year to give it time to
    mature. Filing for a trademark for an idea that I may or may not use
    seems like a bit much.

    It might make the whole trademark process seem less daunting if it were
    broken down into steps. Am I correct in assuming that at each step a
    person can make a go / no-go decision whether to proceed to the next
    step? If so, is it possible to list the steps involved (before, during
    and after filing) and give ballpark figures of the time / cost for each
    step? If this is not something you want to disclose on a website could you at least do so privately?


    Steve2007-2-2 13:16:11
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