[TXSS]

Just my .02 but clearly the mark should be controlled by Helen. I know very few of the facts regarding this dispute. However, I have quite a bit of experience with trade marks and the use of trade marks by non-registered users. In 1953 my father developed a gasket material used by NASA. The product was called Fluorogreen and the trade mark was registered and controlled by the company my father worked for. In 1972 he purchased the division that made the Fluorogreen product but the trade mark stayed with the original company. In 1980 that companies assets were liquated and the trade mark went to the bank. We continued to use the trade mark and make the product for the next 15 years. We never thought of registering the mark in our name. Shame on us. Back in the day there had been a gentleman's agreement to allow my father to use the trade mark. A competitor of ours did a searches with the patient and trade mark office and saw that the mark was not registered in our name. Under a secret agreement between the registered owner (a bank) and our competitor, the registered owner (a bank) sold the mark to our competitor and our competitor applied for the registration of the trade mark.

Sorry, but it doesn't work that way.

There are two defining points that determine who owns a trade mark and one of them IS NOT who the registered owner is. The first is whoever controls the mark in commerce owns that mark regardless of who the registered owner is. In-fact we were able to keep the register owner of the trade mark from selling it to our competitor because WE had controlled the mark in commerce for the past 15 years not "The bank" . The second defining point is you have to prefect your claim to the mark. Meaning you have to prevent anyone from using the mark with out your permission. Ask Dupont. They lost control of the trade mark Nylon because they did not prevent others from using it. The Bank had never tried to prevent us from using the mark and had never controlled the mark in commerce so they had no claim to the mark even though they were the registered owner. If Helen can show that she has controlled the mark in commerce then she owns the mark but she also has to show that she has at least tried to prevent Val or anyone else from using it. It's kind of a double edge sword but it's a fair system. I spent three years fighting this battle only to find out that the battle was over before it started. We controlled the mark so we owned the mark ..... period.

Hopefully that's the way it will turn out for Helen.

Rick