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Never mind

by fin
10 replies
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#instagram #internet #lawyers #question #trademark #wanted
  • Profile picture of the author professorrosado
    You can prove your commercial use of the name before they, then you're good. You own certain rights even before you register.

    I would register anyway and pursue the remedy via instagram or whatever venue it is infringed in.

    For both scenarios, I would retain a lawyer.

    If you can't afford one, you may try some of the legal services being sold around the net that offer a free consultation.
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    • Profile picture of the author fin
      "............
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      • Profile picture of the author Kay King
        I do feel like crap about trying to take a name away from someone, but they've not posted in a while and don't have a huge following anyway.
        Did you register your "brand" as a trademark? No, you haven't done that. But now you want to "take it away" from someone else....

        If you felt like crap about doing it - you wouldn't try to do it.

        I have a website and I was first to commerce on my brand name.

        Someone owns the Instagram handle, which luckily infringes on my name.
        A bit confusing to me - are you saying YOU have been selling this "brand" for some time - or that you are "selling" under the name and the other person isn't "selling"? How is that "lucky"??? Maybe I'm misreading that part?

        I have no idea if you'll be able to do it or not - but always interesting how far people go to justify doing what suits them.

        I don't mean to sound rude but why is it people feel they have the right to take what they want - even though they admit they haven't taken the legal steps required to HAVE that right?

        And why do people give legal advice on forums?
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        • Profile picture of the author fin
          ........?.
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          • Profile picture of the author mich800
            Originally Posted by fin View Post

            Thanks for your reply.

            I did ask if anyone had experience of a similar case.

            And I hope you would put your personal feelings aside for the sake of your business in some situations.

            You don't actually need to register a trademark to own it as I've mentioned. You only need to be the first person to offer a product or service under the brand name.

            If this person had content on their Insta page that had nothing to do with my industry I couldn't do anything about it.
            I guess it comes down to do you "know" for certain you are the first to use this name and not the other way around. Is there other online or offline evidence that the other party has you beat? If you are confident maybe pursue it. But if you are wrong you could lose and also lose your right to the not yet trademarked term. Just make sure you are appropriately armed when you poke the sleeping bear.
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            • Profile picture of the author fin
              Haha don't worry about the poking bear thing.
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            • Profile picture of the author kilgore
              Just because you've been using a name doesn't mean you own exclusive rights to it for all uses. Yes, even without registering a trademark you do have certain common law trademark protections. But these aren't infinite as they only apply to the use of that trademark for certain purposes. For example, "Peter Pan" is a peanut butter, a Disney character, and a bus company. Even if the peanut butter came first, as long as the bus company doesn't get into the packaged food business, they can peacefully co-exist.

              The real question is whether there is or has been any consumer confusion resulting from the similarity of your two marks. If not -- either because your businesses are sufficiently different or because nobody has heard of you anyway, then that Instagram account is unlikely to be infringing on your trademark, registered or not. Of course, beyond even that there are a million complications that may strengthen or weaken your case.

              So all that said, the best advice anyone can give you would be to talk to a lawyer. Or better yet, email the Instagram user and see if they'll sell you the account (assuming that's allowed -- I'm no Instagram expert). If they really aren't very active they may sell at a price cheaper than an hour's consultation with a lawyer and you won't have to feel bad about kicking off that account (assuming you're even able to, which honestly I doubt).
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              • Profile picture of the author kindsvater
                If you were using the name in commerce and it is reasonably unique, and then later someone started using that name in Instagram, then you have a shot at convincing Instagram to turn it over if there is confusion about whether the user is you.

                Any other scenario is a loser for you.

                Example: If you trademarked the word "trademark" (yes, there is actually a trademark on the word 'trademark') and someone later signed up using the name 'trademark' - it is too generic and you are not getting it.

                Example: Joe signed up as Super Joe in 2012 and then in 2014 you began using the name Super Joe, it doesn't matter if you register a trademark or not, you do not have the right to steal the name away from Joe.

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                • Profile picture of the author fin
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              • Profile picture of the author fin
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