If you have a product or own a business, it can be difficult in this day and age to come up with a unique name. This is especially true if your first or last name is part of the company name — it is unlikely there aren’t at least a couple other Johnsons out there who offer products.
When the question arises of whether or not your company or product name is too similar to another, there are a few things regarding trademark law to keep in mind.
What is a Trademark?
The dictionary defines a trademark (or service mark) as a “symbol, word, or words legally registered or established by use as representing a company or product.” In short, a trademark is what is used to distinguish companies and products from one another.
It is possible for two companies to have similar marks; for example, Dove chocolate and Dove soap. They serve different markets, however, so there’s no trademark infringement.
How to Identify a Trademark Problem
The first thing to do is to ascertain whether or not a certain mark is protectable. Descriptive terms or phrases such as “best bath products” are not since they merely depict the product or company.
The guiding principle for a trademark is consumer confusion. Basically, two service marks or trademarks can operate in different markets as long as they don’t confuse the consumer with similar names.
If you are interested in Dove soap products, it is unlikely you will mistakenly purchase a bag of chocolates instead.
Can I Get in Trouble?
In a nutshell, it depends. Being in the same industry or geographic market as the other trademarked business or product, and knowing who was using and registered the trademark first are things to consider when regarding a potential trademark infringement.
If it so happens that you have a name similar to a trademarked product or company that is a potential competitor, you may receive an email threatening legal action or a cease and desist letter. These occur frequently and don’t mean you’ve necessarily done anything wrong. Keep in mind, when it comes to trademark infringement, just because a competitor is threatening a lawsuit does not mean that they are guaranteed a win.
This is why it is important to consult an attorney as soon as possible if you are facing a potential trademark issue. Bernick Lifson provides skilled and experienced attorneys to guarantee you will be well represented and informed.
Contact us today!