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Must a competing band change their name if I was first?

Hello, I have been writing songs since 2006 and publishing them online for fans.

It has recently come to my attention that a Boston performance group trademarked (in 2011) a derivative spelling, they spelled out the numeral in the name (only change). I suspect that under common law trademark, because I have created works of art (music) aka product, published, and performed it for compensation since 2006 that my use takes precedence.
They clearly have deep pockets and gained recent national attention on a TV show, with a financial backers invested in their use of the name. Since I am not wealthy, is forcing them to relent on their use of the name a realistic possibility?

~ Seattle, WA

In short, if you plan to act, you should do so fairly soon. One of the advantages of a US Federal Trademark is that they can only be challenged by a common law trademark during the first five years of registration.

If you do not challenge their trademark, they may be able to prevent you from expanding your use of your trademark. Of course, that would most likely happen because they would become aware of you, for example, because you got national exposure for your work.

Consider reading this longer article about trademark cancellation proceedings at the Trademark Trail and Appeal Board.

If you can not afford an attorney, it is possible to represent yourself, pro se. You would need to learn the Federal Rules of Civil Procedure, the Federal Rule of Evidence and the Trademark Board Manual of Procedure (TBMP). The filing fee is $300 per class of trademark. Also, I recommend you spend some time at the local law library reading about the trademark concepts of "likelihood of confusion" and "priority of use". You will need to present evidence to show your earlier trademark use.

I hope this helps you. Good luck!

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