Although I appreciate what you are saying, I'm hoping you are wrong...or only partly correct. I'll be busy doing research on this tonight. If anyone has a specific citation for usage or qualifying marks, I'd appreciate seeing it...especially if it saves me an hour of research.
I hope there would have to be more definite parameters than just using it in commerce to be considered marked. Using that criteria, almost every term in possible would be exclusive, since there can't be limitations of application. But if so, why have the USPTO and the whole formal process?
Doesn't it also depend on the original time of domain registration vs the date of formal use. I registered it about two months ago, but I don't know if their ad was already out. How would I find this out?
Thanks again for information and advice.
********************************************
Here's what I found...greggish is mostly correct, but the "first use" also plays a role...
Trademark Protection in the U.S.
Trademark rights exist on three levels: at common law, by state registration, and by federal registration.
Common law marks are marks protected because they have been adopted and used, and the public recognizes the products or services identified by the mark as coming from a particular source.
State registration systems exist throughout the country to allow the owners of common law marks to register them if they are used within a particular state.
As commerce between the various states evolved, the federal system of registration emerged to provide protection for marks in interstate commerce. Federal protection may be available for the name of your product and/or service, a logo or any other mark that identifies you as the source of a product or service. Common law and state registration rights will be enhanced by the benefits associated with federal registration.
Federal registration rights can be renewed and can last forever.
In this current global economy, you should consider federal registration rights as well as trademark rights throughout the world.
What is a "common law trademark right?"
Once a trademark is successfully registered with the USPTO, certain statutory rights are created protecting the trademark owner. However, the general rule often referred to as "first-in-time"--The first person or entity to use a trademark in commerce receives common law protection for the use of that trademark. Thus, this "first person" can prevent others from using that same trademark...even if this "first person" never registered the mark. Therefore, conducting a Comprehensive Trademark Search is vital in helping you make the determination of whether to proceed forward with your trademark registration...even if the mark is NOT registered with the USPTO by another person or company.
Although the majority of trademarks in existence are NOT registered, owners of UN-REGISTERED trademarks still have legal rights to the EXCLUSIVE use of their trademarks.
Therefore, you must search ALL OF THE FOLLOWING public records sources BEFORE submitting your trademark registration application.
โข Registered Federal Trademarks Principal Register.
โข Registered Federal Trademarks Supplemental Register.
โข Pending Federal Trademark Registrations.
โข State Trademark Registrations (NATIONAL--for EACH state).
โข Unregistered Trademarks (Common Law Trademarks).
โข County Filings (NATIONAL--for EACH state).
โข City Records (NATIONAL--for EACH state).
โข State Licensing & Regulatory Boards (NATIONAL--for EACH state).
โข The Yellow Pages (NATIONAL--for EACH state).
โข The White Pages (NATIONAL--for EACH state).
โข Domain Name Registrars.
NOTE: Searching Public records for multiple states and jurisdictions is an ENORMOUS task. Many public records search firms can perform the search for you and provide you with a national report for less than $200.
