I’m in the process of creating a dating app, but there already exists a food website by the same exact name and they also have an app on iOS, for ordering food. The company that runs the other app is quite big but not a household name (they’re a US company worth about $100m).
The other company has trademarks in all English speaking countries for the wordmark, but they only registered in food categories, not in software (category 9). I am planning to file in categories 9, 42 & 45, none of which have any overlap with the other company’s trademarks.
My concern however is that since they already have an app (and mine is not launched yet), they have first use rights under US common law. Does this mean they already have rights in category 9 even though their filing doesn’t cover category 9? On the other hand, their app is for ordering food, so it’s not actually SAAS, whereas with a dating app, the software IS the product, which strikes me as a potentially important difference.
TLDR: we’re in different industries but operate in the same channel (App Store). Would they have a leg to stand on if they tried to block my application and/or sue me?
I’ve contacted some TM lawyers but thought I’d ask here in case anyone has any direct knowledge or experience around this.
Grateful for any help 🙏