Many of us have always operated under the assumption that when we adopt a business name and brand, much of our activities will be protected through use; if another company or entity tries to infringe upon our markings, we would stand as victors due to avid use through advertising and the like.
A recent legal case sheds some light on our assumptions, and tells us that there is some error in our thinking.
Yes, just because you may be advertising your business and brand before getting a federal service or trademark, you are legally not protected under the commerce clause.
Why, you ask?
Because in the legalese sense, no commerce has occurred unless a transaction has happened. Yes, in order to have protection under the clause, not only must you prove that you have used the brand name or mark before the other party, but you must also prove that you have actually sold something while operating under the sought-after identity.
Interesting, yet frustrating.
We would like to think that advertising is the beginning of the transaction, but the law rules.
Dwayne W. Waite Jr. is partner and principal at JDW: The Charlotte Agency, a marketing and advertising shop in Charlotte, NC. He enjoys consumer behavior, economics, and football.
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