I am testing the ecommerce waters with my own private label products, while slowly getting some initial success I'm now facing the issue of someone else using my exact mark. I am now preparing to file my mark, but am wondering if it is possible to have some level of protection as long as I can proof that I started using the mark before the other.
yes. Many jurisdictions have rights in a mark that arise simply from use. That said, it is not the same as the rights flowing from registration and in some jurisdictions, it is not available.
A quick call to a trademark lawyer should allow you to clear up if the rights you get through use are sufficient for your purposes.
Note: Branding and brand strategy is the most overlooked aspect to starting a business and a little expense now can save you a whole lot of problems later on.
Yes. Mere use of the mark in commerce is sufficient to confer what are called "common law" trademark rights in your mark. That is to say, it is not necessary to obtain a trademark registration in order to have enforceable rights. However, common law trademark rights are much weaker than the rights conferred via a federal trademark registration. For example, common law trademark rights only exist in States where goods/services bearing the mark were sold. Conversely, a federal trademark registration confers rights across all 50 States, regardless of whether the goods/services bearing the mark were actually sold in all 50 states. I'm happy to discuss in further detail if desired.
In common law countries (U.S., Canada, UK, and a few others), you will have limited protection to your unregistered trademark. The protection will be limited to the geographical area where your trademark has become known by a sufficient number of people who have come to associate your trademark with your products and services. You will have no protection outside of that geographical area, and anyone can legally rip your brand off.
Most countries in the world provide NO protection to unregistered trademarks, so unless you have filed a trademark application in those countries, your brand is unprotected.
Check out the cartoon we published on this topic at http://trademarkfactory.ca/cartoon/unregistered_vs_registered_trademarks
And feel free to schedule a call if you have further questions.
Founder and CEO of Trademark Factory® (http://trademarkfactory.com), the only firm in the world where licensed lawyers and trademark agents help entrepreneurs and businesses from around the world trademark their brands with a free comprehensive trademark search, for a single all-inclusive flat fee, with a 100% money-back guarantee.