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rubencouto

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Hello!

A guy in europe is setting up a sort of BrandBucket clone/copy: BrandBucket.org.

It seems that he has filed for "Brand Bucket" trademark: http://www.trademarkia.com/brandbucket-87250042.html

What are your thoughts on this?

Is he infringing any trademark law?
is he violating any copyright laws?
Is he "only" cybersquatting?
Is this illegal?
Could any domain sellers be penalized for publishing their names at BrandBucket.org?

Thanks for any feedback!
Ruben
 
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@jberryhill Can you have a trademark without a trademark registration?
 
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@jberryhill Can you have a trademark without a trademark registration?

Yes, in fact, in the United States, you are required to have a trademark BEFORE you have a trademark registration. In the US, you register your trademark in order to obtain a variety of procedural advantages in litigation. You can file an application on the basis of an intent-to-use, but if the application is granted, then that application will not proceed to registration unless and until you submit proof of use of the mark.

This is like asking if you can own a car without a vehicle registration. Yeah, sure you can. You register your car in order to obtain certain privileges - like being allowed to drive it on public roads. But if I want to buy a car in order to display it in my car collection, or drive it around on my private property, I don't have to register it. You see those guys driving around the NASCAR track? Do they own cars? Yup. Are those cars registered to drive on public roads? Nope. Notice that none of them have license plates.
 
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Can you have a dog without a permit to walking him in the park?

Precisely. If you don't want to walk your dog in the park, you don't have any reason to want to register your dog.

In the US, you "get" a trademark by using a distinctive mark on your goods/services. If you want to enforce that mark, you will have to prove in court that you've been using it, it is valid and distinctive, that you own it, that it is enforceable in the jurisdiction where you are suing, and a few other things. The burden will be on you to prove those things in order to enforce your mark.

If you have a trademark, and you then REGISTER your trademark, then you (a) automatically have the right to sue on that mark in federal court instead of state court, (b) you walk in with the presumption that it is valid and distinctive, and that you own it, (c) your right to enforce automatically extends to the entire US and is not geographically limited to your trading area, and a raft of other enhanced rights. In other words, registration shifts the burden of proof on those things to the alleged infringer. Instead of having to prove you DO have a valid trademark in the case of an unregistered mark, your registration says you have one, and the other guy has to prove you DON'T.

But registration of your mark in the US does not "get you a trademark". It confers certain enhanced procedural and legal rights in the mark you already had.

A similar situation is true with copyrights. If you write a work of orginal authorship, paint a painting, compose and record a song, etc., you HAVE a copyright in your work. Automatically. That will give you the right to stop others from copying. If you want to sue for monetary damages in federal court, you will have to register your copyright. But registration is not what gets you a copyright. Registration merely provides you with certain conveniences and shifts the burden of proof as to whether you own one.
 
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