Ships,
The date that the TM was registered to them doesnt matter. The mark could have been implied anyway if they were using it before to promote their company. IE they were known as "ABC" or could prove they marketed as "ABC" prior to the mark for "ABC" being granted.
In law the following aspects on trade mark disputes are taken into account:-
1. Is the mark identical? - By this i mean EXACTLY the same.
2. Is the mark being used for EXACTLY the same trade or service?
3. Could the use of the mark cause confussion with the public?
Despite the above, two exact marks on the exact same business can co-exist if both sides agree. ie the mark "ABC garage" a motor garage in London and the same mark "ABC garage" but for a motor garage in Scotland - if they both agree
Most legal issues come as a result of "passing off" as already mentioned, are you trying to trade off the other business in some way, could customers be confussed? - This is often difficult to prove in various cases as even a business in the same sector may NOT be offering EXACTLY the same service and also geting evidence that customers were missled isnt easy. A good example of this being the TM "apple" secured by both "Apple Records" the beatles label and "Apple Computers" the computer suppliers. Both use the EXACT same mark "Apple" and were happy to co-exist, one for music one for computers.
They had a major legal battle when the beatles label took action following apple computers launch of itunes claiming it was passing off as it related to music, ie in their direct trade mark protected class of business. A judge ruled against them saying that "customers were not and could not be confussed by the computer company as it was a different service (albiet in "music" )and that users would recogognise both companies individually, hence no passing off.
In your specific case it comes down to what you are using the mark for?. If you are simply squating on the name and gaining from type in traffic looking for the original brand imo its a matter of time before a wipo is issued and you lose it anyway, likewise if you are not using the mark as part of your business, you would be on dodgy ground imo but point 1 above would have to apply ie the TM registered and your domain name/ use of the mark being IDENTICAL.
If on the other hand you are running a legitimate business with it and you are confident that at least one of the points 1 to 3 above dont apply you should be ok.
If you are using the mark for a different business i also cant see a major issue but depends on the mark and circumstances. i.e if the mark was "Browns" registered to Browns Cycles used for sale of cycles and you owned Browns.com and were selling cars under the name "Browns Cars" then no problem. If on the other hand the mark was "Microsoft" and you were trading as Microsoft.com with a site selling computer equipment then you may have issues.
Bottom line is, if in doubt seek proper legal advice but the fact that you registered the domain prior to the trade mark is imo not relevent, it comes down to the use of the mark between the two parties, passing off and possible public confussion
Hope this helps - Good luck with it
Rich
