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Tradmark Infringement? (Intellectual Property)

Sat, 28 Oct 2006 19:55:00 GMT
Tags: business, infringement, infringmenti, intellectual, law, mainly, massachusettshe, photographs, property, sports, state, trademark, tradmark

What is the name of your state? Massachusetts
he issue is Trademark possible infringment
I have a side business of taking sports photographs; mainly of cycling, but also some high school stuff. I do it freelance in that I don't work for a larger company or get paid buy someone else to take pictures. I basically take shots, throw them up on a website, and anyone can view and by them.
The name of the company is Fast Coolphotos, (not really the name but I want to not divulge the names in case legal actions are in the future) and we have a website called "www.fastphoto.com". Again, not the real name but the first word in our company name is the first part of the web address followed by the word "photo" We have been in business almost two years.
Today, I got a letter from a law office reresenting a firm called Coolphotos, Inc. that I am in violation of their trademark and that I need to cease to use the mark "Coolphotos" else the wrath of God will come down on me and they will press the matter further. Again Coolphotos is not the company's real name. They said the recently became aware of me. The letter states that I have ten (10) days to provide a written response on the steps that I have taken to comply with this (their) letter. More legal speak, but that is the gist of the letter.
I looked up the mark and it does exist along with a their corresponding "art" trademark, basically their logo The field of use is similar to mine except they claim to specialize in YOUTH team and clubs sports and offer there photos on prints, mugs, trading cards, etc. I just print photos.
Oddly, they (The company whose trademark I am infringing) had the same mark many years ago and abandoned it in 1998. The new mark was only applied for in 2003, publish for opposition in October 2004, and awarded in Jan 2005. The Logo mark (drawing) later.
The company is located in CT and has been around for about 20 years. They claim to specialize in youth and team sports and currently have representatives inmost of the New England states, NY, NJ, MI, and OH. As stated, I typically don't shoot youth sports, but mostly cycling and some high school stuff at parents request. I never have wored a venue that has had a photogrpher from the other company present.
I looked on the net and several other people are using the word "coolphotos" in either there website, name, or advertisements. I am sure if I dug some more off the internet, I could find more examples. I think they (the company threatening legal action) became aware of me because, my company is listed soon after them in a google search.
I could easily drop the "coolphotos" thing or change the spelling to say something like "Koolphotos", but I'd rather not do anything. Maybe I am wrong, but I think their is enough of a difference in names to not confuse the two. My company's name "Fast Coolphotos ", to their "Coolphotos, Inc."
Questions:
1) Do you think there is enough of a legal differnce in the names that I could win if fought in the legal system?
2) If so, how would one craft a response to their letter?
3) If I say, yes go ahead and try to bring legal action, at what point does it cost me, penalty wise, moving forward. What I mean is, I tell them yeah, try to press legal action and then just at the 11th hour say, okay I've changed my mind, I'll comply. Can they still come after me for fees/lawyer costs etc. back damages? It's not like I make any money at this. ($1000/year). I am not incoprated, so if they do come after me, can they come after my house and personal assets?
Thanks.
LegallyDumb

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  • Sun, 29 Oct 2006 00:33:00 GMT(1)

  • Quote:

    Originally Posted by LegallyDumb

    1) Do you think there is enough of a legal differnce in the names that I could win if fought in the legal system?

    Infringement is based on the likelihood of confusion. There are no cut and dry rules that state what infringement is, as it is a definite grey area. Nobody here can tell you the correct answer here, only a court can (but I'm guessing it's not in your favor). Ownership of a trademark comes from commercial use. If they are not using they're trademark anymore, then they probably don't have rights to it anymore. If they are still using it, then you don't have much to stand up on.

    Quote:

    2) If so, how would one craft a response to their letter?

    If you want to try calling their bluff, you can say anything you want in the letter. No matter what you say, one of two things will happen: they will follow up with a lawsuit, or they won't. Trying to sound smart with legal mumbo jumbo will probably not help your odds either way. Just keep it professional.

    Quote:

    3) If I say, yes go ahead and try to bring legal action, at what point does it cost me, penalty wise, moving forward. What I mean is, I tell them yeah, try to press legal action and then just at the 11th hour say, okay I've changed my mind, I'll comply. Can they still come after me for fees/lawyer costs etc. back damages? It's not like I make any money at this. ($1000/year). I am not incoprated, so if they do come after me, can they come after my house and personal assets?

    They technically do not have to send a cease and desist letter before suing you. They could sue you at any point for your infringement. Just because you back off at the last second does not mean they can't keep going with the lawsuit for the infringement you already committed. An extreme example: if you are being charged for serial killing, they're not gonna drop the charges just because you stop killing people; you're still accountable for the crime(s) you already committed.
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