QUESTION
Could a vendor use a grandfather clause to get a trademark?
Asked on Aug 24th, 2015 on Patents - Massachusetts
More details to this question:
For nearly 75 years people have been selling shirts, hats, patches etc. in stores, online etc. in 2010, the city saw an opportunity to "cash in" on merchandise and trademarked. They are now saying no one can sell items without getting (crappier) stuff from there approved vendors. What I want to know is if there is a grandfather clause on trademark law, especially for those legal business who were in business and selling material prior to 2010.
1 ANSWER
Appellate Litigation Attorney serving Boston, MA
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Banner & Witcoff, Ltd.
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Yes - there is a grandfather clause in trademark law - the first user of a trademark - as a source identifier - has "common law trademark rights." Mere ornamentation (use of a design or word, not as a trademark) is not protected under common law trademark rights. So the question is - who used the "trademark" properly in the first place - the city or the early vendors ?? Go visit a trademark attorney, bring facts and proof of early use. Then you will know if you call into "common law trademark rights."
Answered on Aug 24th, 2015 at 5:57 PM