You Say Tax Pro. I Say Pro Tax. Charlottesville Accountants Sue Mississippi Tax Preparers.

CHARLOTTESVILLE, May 15, 2009 -- Virginia headquartered Pro-Tax USA, LLC brought a trademark infringement action against a Mississippi accounting and tax preparation service trading as The Tax Pro.

Charlottesville's Pro-Tax USA, LLC offers accounting and tax preparation services via franchises throughout the United States under the service mark PRO-TAX. The PRO-TAX trademark was federally registered on October 11, 1994, citing a date of first use of January 30, 1974.

As a general rule, the first party to use a trademark has the superior claims of ownership and can prohibit others from subsequently using a confusingly similar mark.

Pro-Tax USA, LLC argues that the defendants' TAX PRO is confusingly similar to PRO TAX and therefore constitutes trademark infringement.

As part of the federal trademark registration process, the United States Patent & Trademark Office (USPTO) publishes the trademarks seeking registered status in a regularly published gazette to satisfy notice and due process requirements under the U.S. Constitution. The publication period of 30 days is meant to give interested parties an opportunity to oppose the registration of a trademark for good cause. After a mark has been published for opposition and registered status is conferred, the public is deemed to have knowledge that a trademark is in use. In legal terms, this implied knowledge is referred to as "constructive notice." As a consequence, a party using a confusingly similar trademark after the owner's date of first use can not plead ignorance of the owner's prior use as a defense.

Named as defendants in the suit are the business calling itself The Tax Pro, Thomas L. Guinn, Kristy Corey, Virginia I. Kellum and numerous unknown individuals deemed John & Jane Doe.

Pursuant to the Lanham Act, Pro-Tax USA, LLC could recover the defendants' profits and any damages sustained by the plaintiff if infringement of the federally registered mark PRO-TAX is found. In assessing damages the court may enter judgment for any sum above the amount found as actual damages, up to three times. When a court finds a defendant intentionally counterfeited a registered trademark, the court must, unless the court finds extenuating circumstances, enter judgment for three times such profits or damages, whichever is greater, together with a reasonable attorney’s fee unless the Plaintiff elects for statutory damages up to $1,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed.

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