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 Need 2 register estd US cmnlaw tdmk band name New infringer 
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Joined: 2015-08-06 16:09:19
Posts: 1
I did a trademark search and search of all music sales and streaming outlets as well as major social media sites a few years back to verify that no one was using a particular short phrase as the name for a musical entity. My search showed that although the phrase appears in many places, no one was using it as their name for any sort of commercial use describing an entity. Think "Friends With Benefits", for instance, as a band name. No one was using it as such.

I started using it at that point, and it has been in persistent use for music sales and streaming for a couple of years now in nearly every major music sales, streaming, and video outlet around the world. In addition, I have used it on many prominent social media networks, etc. In each case, I have used the same logo containing the wordmark followed by the TM symbol.

A year ago, another entity who's M.O. is to create soundalike recordings with the intention of tricking listeners into accidentally streaming or purchasing their identical version began infringing. They did so not because they wish to persistently use the mark, but rather because the phrase happened to be the name of the song they were copying, and they simply chose the song title as the band name in a poorly researched one-off. I presented them with a cease and desist in defense of the mark, and they agreed to take it down and rename the "band."

A year later now, the same exact situation has unfolded. Another entity is using it as a one-off simply because it matches the song title. I understand that in their case, even HAVING a band name is detrimental since the entire purpose is to fool searching listeners. Apparently, they know enough to realize that they can't use the original artist's name or they would be sued for infringement. Their attempt to have no discernible identity and maximize keyword relevance for those seeking the original track has, however, caused them to land on my mark instead.

So... I have not registered as I did not have the money last year. I have been making money from the music lately, and do have the funds. Here's the current situation.

1 I need to stop the infringing party ASAP (They are appearing as me displacing my own tracks and directly costing me money)

2 I need to register the trademark federally

I have read up all I can about the filing process, legal opinions, etc, but not sure what particulars are about filing application WHILE infringement is in process. Does this affect my application somehow? Is there a certain order in which I should proceed? I have sent a cease and desist to the infringer's aggregator (who they use to be listed in itunes, etc), but they have not responded, and have not forwarded their client's contact information (what they have listed only leads to me).

It's about as well established a case of commonlaw trademark as I could hope for (established unique and persistent commercial use in nearly all of the exact same outlets in which they appear.) Only concerns are the fact that it is a common phrase outside of this context (Again, "Friends With Benefits" is probably a good example of it's use and ubiquity), and that it is not yet registered. Looking to fix that.

Please don't just answer that I need an attorney. If I could afford one, I wouldn't be on here, so despite your best intentions, I promise such "advice" is of no use to me as it is simply not an option. I've barely got the filing fee, but I have personally handled more complex legal maneuvers in the past, and am more than willing to do all the research necessary to do it right. Need practical advice on exactly which order in which I should be proceeding, and whether and how the current infringement affects my application process.


2015-08-06 16:11:38
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