Seklir manufactures clothing under the eco-friendly label LYS. Through a friend she noticed Kmart selling brands under the same name: LYS.
Although it seems like a clear cut case (identical trademarks, identical products), it could be a tough battle for Seklir, as she neglected to trademark her company name.
On the other hand, Kmart registered its LYS logo back in October 2010. However, under common law, Seklir has some protection under “first use” rules; whoever is the first to use a logo or brand in the marketplace has some rights. At least in the US.
Seklir has invested a lot in her company now faces the possibility that her eco-friendly brand has to coexist with an identical brand that features heavily dyed, polyester knits made in China.
Let this be a lesson: register your brand! Yes, also all you start ups out there. This is money you would like to have spent.
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