Question
I recently found a company using a logo very similar to my distinctive logo. I sent a generic cease and desist letter and the guy called me and said it was unlikely I could win if it went to court. My company is Social Magnets and has a large online presence. His is newer and has little presence. My logo is two magnets linked together to form an M so is his. I have a few questions. I was pretty sure from checking nobody else was using this design of a logo when I made it. I have been around for about 4 years using it online and his website is about a year old. He wanted me to give him permission, but my concern is If I haven't registered it as a service mark, what protections do I have if I have been using it first/longer.
Can someone else in response to my notice go trademark it and I would have to stop using it? My concern is as I build my brand I don't want other people coming after me in some weird way. Also is there any protection before or without a registered service mark? and any protection in the process and if not how long does it take? Lastly, their name is Magnet Social SM, mine is Social Magnets. Is there a way to protect the use of social and magnets in regards to marketing and consulting like Apple is to Computers and if so is this expensive or beyond a regular service mark. Thank you.
Answers: 2 public & 1 private
The quick answer is that TM protection "begins" with usage, so since you appear to be the first/senior user, you should prevail, however, my advice would be to register your TM/SM ASAP so as to effectively give notice to the world that you do in fact have a viable TM/SM, and that you also have a TM/SM registration which you will need to take further legal measures in enforcing your TM/SM rights and to effectively force this other party to cease and desist and to also possibly obtain damages for TM/SM infringement. You should consult a TM/SM professional.
I agree completely with Steven's answer and strongly recommend you promptly consult a TM attorney. Registering your mark would probably address many of your concerns. But a key fact which I dont know is whether "social magnet" is a term of art in the trade that describes your and your competitors' service. That fact would suggest your alleged infringer may be correct that you can't stop other businesses in your field from using "social magnet."
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