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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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My company received this email and I was wondering if a IP

Customer Question

My company received this email and I was wondering if a IP solicitor could help out and give me any information to wether or not the case can be won.

EMAIL BELLOW:

anuary 3, 2013
VIA EMAIL AND FIRST CLASS MAIL

MCPOWERHOSTING
c/o Domains by Proxy
14747 N Northsight Blvd Suite 111, PMB 309
Scottsdale, AZ 85260


RE: MCProHosting (Reg. No.(NNN) NNN-NNNN; (International Reg. No.(NNN) NNN-NNNN


Dear Sir or Madam:

I represent Mr. James Boehm and MCPROHOSTING LLC of Suwanne, Georgia and Tallahassee, Florida, respectively. Mr. Boehm is a founder and principal of MCPROHOSTING LLC, and the trademark owner and international registrant of MCProHosting (Reg. No.(NNN) NNN-NNNN; (International Reg. No.(NNN) NNN-NNNN. As you are aware, Mr. Boehm operates a highly successful server hosting company under the trademark MCPROHOSTING.

Our client has been using the mark MCPROHOSTING since, at least as early as, September 11, 2011. Through recent communication with confused clients, our client has become aware of your infringing use of this mark. A review of whois domain registry records indicates that the domain name MCPOWERHOST.COM was registered on September 1, 2012, well after our client's first use of the mark in interstate commerce. Subsequently, it appears that you adopted MCPOWERHOSTING as the name of your business and displayed this on your website and Facebook page. (Your company's “About Us” page states that you are located in the United Kingdom, but that you also serve customers in the United States.) There appears to be no other record indicating that you have used or acquired rights in the mark before September 1, 2012. A search of UK company records finds no registrations under “MC Power Hosting” or variations thereof. Additionally, there are no trademark registrations in the WIPO (World Intellectual Property Organization) trademark database under “MC Power Hosting” or variations thereof.

From a review of your website and descriptions of your organization on the internet, it is clear that you are also in the field of server hosting. Being that you are in the same filed as our client, the similarity between your MCPOWERHOSTING mark and our client's MCPROHOSTING mark is likely to cause confusion, mistake and deception as to the source of services, currently marketed by your company. In fact, there have been numerous recent instances of actual confusion between the two marks and associated companies. Please see the enclosures for instances of confused clients repeating inquires such as, “Are you affiliated with MCPOWERHOSTING?”

After researching and analyzing the issue, it is clear the you did not acquire rights to use MCPOWERHOSTING, or any other mark that is likely to cause confusion with our client's mark, prior to our client. It is also clear that your mark, MCPOWERHOSTING, is likely to cause confusion with our client's mark, MCPROHOSTING. Consumers may also be confused into believing that there is some affiliation, connection, sponsorship or other relationship between MCPOWERHOSTING and MCPROHOSTING. As such, we believe you are in clear violation of the Lanham Act 15 U.S.C. § 1125, The Madrid Agreement and International Trademark Law.

Accordingly, we ask that you cease and desist from any further wrongful actions, including, but not limited to, the immediate removal of the MCPOWERHOSTING mark and other marks that are confusingly similar to our client's mark, from your company's website, your company's social media sites, your company's printed and online marketing material, and your company's physical signage.

We would prefer to resolve this matter amicably. However, should you fail to respond to this request within (10) days of the date of this letter, Mr. Boehm and MCPROHOSTING LLC will pursue any and all remedies available at law or equity, including injunction, actual and statutory damages, recovery of profits, and attorney's fees. However, in the event that you comply with the foregoing, or client will happily waive all claims against you arising from the instant trademark infringement.

Please govern yourself accordingly.

Sincerely, XXXXX Esq.
(enclosure sent via separate email)
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.

Alex Watts :

Hello my name is Alex and I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return. There is no need to wait here, you will get an email when I reply.

Alex Watts :

What is the name of your Company please and how long have you been trading?

Customer :

McPowerHosting

Customer :

We have been trading for over a year

Customer :

The two company names are completely different so I am not sure why this issue has been brought up

Alex Watts :

And do you both provide hosting?

Alex Watts :

I assume you offer services to the UK only?

Customer :

We both like many other companies do, provide hosting. We both offer global coverage.

Alex Watts :

Are you Limited at all?

Customer :

in 2 days I will be limited yes

Alex Watts :

The test is correct - would a customer be confused.

Alex Watts :

But you are aiming at different markets

Alex Watts :

You are UK based, they are (I assume) US based

Customer :

yes

Alex Watts :

Are they a big US hosting co?

Customer :

not sure

Alex Watts :

Yes to which?

Customer :

yes to me being uk and them US

Alex Watts :

The good news is that they can't sue you in the USA they would have to do this in the UK

Alex Watts :

I can hardly see a conflict given the different geographic areas

Alex Watts :

If they sued you in the UK as they are based abroad it would cost them around £5000 to even get it started

Alex Watts :

They also need to show that they have suffered a loss and lost customers

Customer :

Would you be able to write me a response?

Alex Watts :

Sadly we are a question and answer site, we can not be instructed.

Alex Watts :

I would really like to but it is against site rules

Alex Watts :

Just write back and make the points I have raised

Customer :

Do you have a skype account?
Do you think they have a case?

Alex Watts :

Again its site rules I can't speak to you

Alex Watts :

I think because you have been trading for over a year and different geographic areas, they have a very weak case.

Alex Watts :

Does this help?

Customer :

We both server globally

Alex Watts :

Yes but your customers are most likely to be in the UK and theirs USA

Customer :

I have customers in both UK and USA

Alex Watts :

Yes. But again you have been trading for a year

Customer :

Ok

Alex Watts :

Does this help?

Alex Watts :

Again there is the jurisdiction issue for any legal proceedings

Alex Watts :

Very costly for them

Customer :

I am only 17, and own a company making around 90k£ profit a year

Alex Watts :

Ok - they can't sue you anyway then! As you are under 18

Alex Watts :

Can I clarify anything for you?

Customer :

(mistype)

Customer :

18

Alex Watts :

ok

Customer :

So i am rather young and inexperienced when it comes to all this

Alex Watts :

If this answers your question could I invite you leave feedback on my service which I hope has been excellent today, if you need more information or help then please click reply.

Please remember that I am always happy to help if you have future questions, even if I am in Court I can normally respond within a few hours. For future information, please start them with ‘For Alex W’.

Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

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