Legal Question in Intellectual Property in Colorado

magazine title copyright / trademark

I've got a fantastic name for a magazine that I'd like to trademark so no one can steal it away. I've done a search with the US trademark and patent office and they show that someone abandoned the trademark in 1984 and the search lists it as 'dead'. Does this mean I am free to trademark it myself?

Also, there is a very small magazine in a town in ontario that currently uses this name - am I free to trademark it in the united states?

Thank you


Asked on 8/26/04, 11:36 pm

1 Answer from Attorneys
Lawrence Graves Coolidge & Graves PLLC

Re: magazine title copyright / trademark

"Dead" doesn't necessarily mean that there are no rights; it only means that there is no federal trademark registration. In order to ascertain whether the prior use has ceased, you would need to investigate when publication of the earlier magazine stopped -- if it hasn't, or if it stopped recently, then that owner would still have superior "common law" rights to any subsequent user of the mark.

Once you have dealt with that issue, you can file an "intent to use" application to effectively reserve the name pending your actual use of the mark in interstate commerce.

The Canadian publication is irrelevant to US trademark rights unless it has circulation in the US; if it does, then they would also have rights superior to yours as a new user.

Best wishes,

LDWG

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Answered on 8/27/04, 9:53 am


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