Trademark – TTAB Trademark Opposition – An Early Alternative to Litigation?
In order to set the stage appropriately, you are the owner of a trademark, either under common law or pursuant to a United States Patent and Trademark Office (USPTO) trademark registration, and you have identified what you deem to be a pending USPTO trademark application that is likely to cause consumer confusion. You have not only discovered that this third party is using a trademark that you believe constitutes trademark infringement, but you have also identified, likely through the use of trademark monitoring, that the opposition period for this USPTO trademark is upcoming. The question becomes – what do you do next?
As a reminder, trademark law requires that in order to qualify for a trademark, an owner must use a distinctive mark in interstate commerce. Therefore, if you believe you are using a mark that is not generic or descriptive, and using that mark to sell goods or services via a website on the Internet, you may qualify for a trademark with the United States Patent and Trademark Office (USPTO). Even if you choose not to seek registration with the USPTO, you may still have common law trademark rights in locations where you do business. While this is the benefit of conducting business via the Internet, there is also a new risk that start-up companies and businesses often overlook.
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A trademark clearance, also known as a trademark availability assessment, allows a qualified trademark attorney to review and analyze current uses of your particular trademark as well as those that may create a likelihood of confusion, which equates to trademark infringement. While a search of the USPTO Database will reveal pending applications and registrations, it is also important to understand that common law trademark rights may be sufficient to create problems for a business. As such, any prior use of a mark that is likely to cause confusion with your mark needs to be identified and analyzed. Ultimately, failure to do so may result in you having invested significant time, marketing and advertising dollars, and effort to create your business and associated brand only to discover that a third party has prior rights to the trademark or service mark you use.
While ultimately you would not only want to ensure that they did not receive a trademark with the USPTO, you would also want to ensure that all use stopped. While an order from court of law would be required to ensure that all use stops or to collect monetary damages, a TTAB ruling may be the impetus necessary to cause the alleged trademark infringer to cease all use of the mark. More importantly, it is often cheaper than trademark litigation and brings all issues immediately to the attention of the parties involved so as to enable the possibility of a resolution. Therefore, a TTAB trademark opposition should be considered as part of any trademark owner's enforcement strategy
Resource Author Francisco Rodriguez Higueras
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Tags: Trademark