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Am I infringing??

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  • patentandtrademarkpatentandtrademark subscriber Posts: 103
    on the uspto site, the transaction does not really "count" until the money is paid.
    I am frequently asked "when do you think I should file a trademark/patent application".  the answer is "when you get to the point that you will be angry when you find somebody copying you."
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  • JenniferJennifer subscriber Posts: 1

     It`s easy to say "I can`t afford it" when we really want to say "I don`t think it is important enough."

    Here`s what I mean when I say "I can`t afford it":  I will have to put it on a credit card until next Christmas, when I *might* make enough profit to pay for it.  And until its paid, I will be paying interest.  Legal services would be nice, but I can`t use them to make cookie dough.
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  • JenniferJennifer subscriber Posts: 1
    OK - so now that the lawyers have weighed in, some practical brand experience observations:* You and they are in separate trade classes. You could definitely get a trademark clearance from USPTO for your cookies, and yes, it does matter.Trademark litigation is in federal court, and USPTO documentation is Exhibit A.Go get yourself some!* LegalZoom can file this for $159 plus the $325 for the USPTO fee. Not bad.* Deep pockets is one issue here: yours are shallow, which is actually to your advantage. They aren`t going to go after you because frankly, at this point, you aren`t a valuable enough target for them.* Don`t be too nice and friendly here - they do not call the shots just because they are better funded. I would not agree to the `no gingerbread cookies` thing - a cookie is not a cuddly toy, no matter how you look at it. * A link exchange, while good for you, is infinitely better for them. Links junk up a website; you are under no obligation to make it easier to find them.* The Cease and Desist letter issue is expressly designed by nasty attorneys (sorry guys) to scare you into the exact behavior you are exhibiting right now. It`s a long road to litigation, and I can assure you they have no desire to go down it - it will cost them much more money than they have at stake, which is basically zero.* Consider the source of advice. Look, I`m getting fairly well-known here for telling it like it is, and I have a decade and a half in the branding business, including federal trademark litigation support and expert testimony. Just because these two chicks look like they could sue you, most likely they won`t.Also, the search engine issue is a little muddled: people are going to Google expressly looking for either you or them. It is not your problem if they find you instead of them.Your logo is good - I would not suggest paying all over again to redo it.Better solution: offer to sell them your existing url, and for a good sum of money.Your url is not what your new customers are looking for right now, and to get any placement on Google for cookies (the real kind, not the web kind), it`s going to cost you a fortune anyway at this point in time. Besides, the toy chicks are obviously paying for sponsored links as well as SEO (search engine optimization), unless they are just all over the place and Google is picking up on that.I would not reveal anymore web stats to them. It`s none of their business.Also, please keep in mind that this entire conversation is being indexed by Google as we all of us type our responses. If you don`t believe me, go out to Google and search for yourself. Be careful with that.Finally, if you haven`t incorporated yet (again, Legalzoom, $249), DO IT NOW. You want to protect your personal assets if they do sue, and a corporation will do that for you.P.S. No, I don`t work for LegalZoom, but they`ve done excellent work for me, as has LogoWorks.com.Good luck!
    Thanks for the advice.  I do take exception to you refering to the two women as "chicks."
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  • stonesledgestonesledge subscriber Posts: 608 Silver Level Member
    Alright everyone. Seems we all take phrases in a different sense. We have a right to speak our opinions but let`s remain supportive.
    This was a very interesting post. I actually filed my own trademark and had to deal w/ issues w/ that and I am sure I will have to later on. There are different classes for use..so may things that come into play. We all had a lot of information that was right. It is amazing how knowledgable we all can be and together we can really be powerful. So Keep supportive , Keep learning and sharing and play nice!
    Erin
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  • headdivaheaddiva subscriber Posts: 0
    Hello all - I am in the middle of this right now, so I will pass on my experience.  I did not contact a lawyer (also have a problem with very limited funds), did my own trademark search on the internet and did not find anything similar to my name - Zen Diva.  I checked on the government site and nothing like it there so I paid the $325 to file and waited to hear back. 
    It came back with a refusal due to likelihood of confusion as someone else had the trademark Zen.  Total surprise to me - doesn`t make sense, but that`s the government.  If I had to do it again I would either spend the money up front for a trademark attorney or I would spend much more time up front researching what makes a good trademark application to try to avoid this. 
     Now I have to either come up with a response or abandon the mark and the $325.  So my advice would be first to decide if you really need/want the mark and if so do due diligence up front before sending in the cash.  In retrospect I probably could have used those dollars somewhere else.
    Cinders - http://www.zen-diva.com
     
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  • stonesledgestonesledge subscriber Posts: 608 Silver Level Member
    You can appeal the abandoment. If this is important to you contact an attorney. I had similar issues with a trademark, and never recieved correspondence from the issued attorney on my case so i was able to appeal. I have learned my lesson and saved alot of headaches by using an attorney for these matters.
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  • patentandtrademarkpatentandtrademark subscriber Posts: 103
    As I understand this, the issue is not abandonment.  The issue seems to be confusing similarity from what I am reading.
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  • ujeansujeans subscriber Posts: 1
    Hello Jennifer,It`s been a week or so since I last took a look at this thread.  I`m pleased that things worked out for you.  It`s less expensive to make a friend - I`m sure that you`d agree!Again good luck with the cross marketing!
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  • FatCookieFatCookie subscriber Posts: 2
    All this information is amazing and so valuable.  I am in the process right now to do my trademark and actually started the process last night on LegalZoom before reading this huge post this morning.  (I did my Will and husbands Will with them recently).I have done extensive research on the USPTO site to see if I could do this whole thing myself (again business funds are nill).  It was quite daunting but each time I returned, I found I understood a little more.BUT, I still don`t don`t feel confident which is why I thought of going with LegalZoom.  I thought they would check everything out for you so you wouldn`t have an issue like Headdiva with it coming back with a refusal.  Is this not true?The reason I thought to go with  them is for the design category issues (I have no idea all the different categories my logo will include but it has circles and there seems to be a ton of circle categories out there on the USPTO site!)So if LegalZoom does not do this extensive searching for you (beyond the public search anyone can make) I can see going to a lawyer would be ideal (if they indeed do this).What would you recommend in searching for a lawyer?  And how much does it normally cost for a lawyer to file a trademark for your company?Thanks everyone!Warm regards,When-Dee Morrisonowner, Fat Cookie (yes, another cookie company, amazing how many of us are on here - what fun!)
    FatCookie2007-2-19 11:48:56
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  • patentandtrademarkpatentandtrademark subscriber Posts: 103
    I would suggest you either hire a lawyer you trust or file directly with USPTO on their website.  Ultimately, you are either using a lawyer or doing it yourself.  Legalzoom does not really add much and won`t/can`t give you specific advice.
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  • FatCookieFatCookie subscriber Posts: 2
    I would suggest you either hire a lawyer you trust or file directly with USPTO on their website.  Ultimately, you are either using a lawyer or doing it yourself.  Legalzoom does not really add much and won`t/can`t give you specific advice.Thank you!  That is what I needed to know since I really thought they would do some of the searching for me.  I knew the legal advice wouldn`t be there but I would hate going with them thinking I was being safe and find out that I could still be in the same risk category as doing it myself.Now when I sit down with a lawyer, I say I want my logo trademarked and they do the searching and categorizing to make sure it gets trademarked or am I still in the same boat that once it`s submitted, it`s completely up to the USPTO office to determine?  (In short, could I still lose my money by going with a lawyer - I am really green when it comes to this stuff).Thank you!!When-Dee
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  • headdivaheaddiva subscriber Posts: 0
    Hello - a note about Legalzoom doing the searching for you.  Yes, they will do a search and provide you with a report, but they don`t tell you if there is a match or not.  You have to go through the report and decide that yourself. 
    I had them do a search (for another trademark) and because I didn`t see the exact same mark I thought I was fine, but turns out even part of the mark or if it sounds similar to another mark in the same category can cause a problem.  If there is no one with anything even close in the same category you have a chance, otherwise I would contact an attorney if the trademark is really important to you. 
    The thing that was nice about the Legalzoom search is it included all the states and other areas that are hard for the everyday person to search. 
    Hope this helps.
    Cinders
     headdiva2007-2-19 13:26:11
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  • FatCookieFatCookie subscriber Posts: 2
    Thank you!  Our logo is extremely important to us as we have created our entire brand around it and have high hopes for it.  It sounds like I should bite the bullet and hire a professional to help us navigate the process.  We have done so many other things ourselves that I feel confident about regarding any risk stuff but this is out of my league.You have been so helpful - thanks a million!When-Dee
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  • patentandtrademarkpatentandtrademark subscriber Posts: 103
    Yes, it is possible to lose money even though you use a lawyer.
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  • patentandtrademarkpatentandtrademark subscriber Posts: 103
    call legalzoom and ask to speak with Robert Shapiro [or any other lawyer at legalzoom] for some free legal advice.  let me know the outcome of that request - just curious as to their response.
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