Trademark infringement & domain name question.?
I recently received a letter from a lawyer accusing me of trademark infringement in regards to a domain name I own. I have a single, retail location in Ohio named "The Fabulous Flea" Market that sells antiques & houseware. At the time I opened the store I also registered and created a website named www.fabulousflea.com (thefabulousflea.com was already taken). Apparently somebody in Texas also has a similar store named the same thing and has trademarked it (hers was opened in '04 and mine in '05). She wants my website. I don't have money for a lawyer, but have read up on infringement and am still unclear as I think the name is more descriptive than proprietary. Is she trying to bully me out of my website name or does she have a legal right to it?
Answers:
I find this amazing, but there are only two trademarks in the Federal Registry with both elements "Fabulous" and "Flea". One in California and the other from your friends in Texas.
The last answer was correct that you will only be able to handle this properly with a real trademark attorney, but since you say you cannot afford one, you might have a problem.
The fact that two trademarks exist with "Fabulous Flea" might work in your favour, except for the fact that the California TM is "FLEAFELLER'S FABULOUS FLEA CIRCUS HANDCRAFTED SCULPTURES" and has an image. However, with so many flea markets in the U.S. and "Fabulous" being a descriptive advective, you might have a case. Unfortunately, if the other party has hired a lawyer, you might find yourself outgunned if you were to try and fight it.
If you really want to keep the domain, there are legal aid departments for small businesses that might be able to help. I included a couple of links below that might get you on the right track. I don't want to be a doomsayer and I don't possess the legal experience in the U.S. to be authoritive, but you are probably going to lose this without some qualified help.
If the store in Texas only does business in Texas and your business only does business in Ohio then it is most likely that the name of the business in Texas is probably only protected within Texas so you would be ok.
IF the person has a federal trademark, which would imply that the person participates in interstate commerce, then you would be unable to use your name.
You are asking for a legal opinion, for which you need to consult a lawyer. But in general a term like "fabulous flea" is not descriptive -- unless you are in fact a flea.
Dan's 2d paragraph is a conclusion and is incorrect.
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