I am launching a mobile boutique that I want to call " Fashion Driven " Someone in the apparel industry has " Driven " trademarked . Since I am unable to register Fashion Driven as my business name , am I able to use it as a catch phrase on my truck instead and register the business name as something different ? IE Call my business " ABC Company " and have " Fashion , Driven " appear on the side of my truck as a slogan and in marketing ?
It would depend on what goods and services the mark DRIVEN is registered to and how you are going to use it. You are welcome to contact me if you would like to set up a consultation. (212) 661-7010.
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Intellectual Property Law Attorney
I'm not sure why you've concluded that you may not use "Fashion Driven" as the name and trademark of your business. The fact that someone else is using [and perhaps has also registered] "Driven" to brand some fashion-related product or service does NOT, on the surface, preclude you from using your selected name and mark. You need to speak with a New York-licensed intellectual property attorney. Good luck.
The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
Patent Application Attorney
Each mark is evaluated under the test of consumer confusion. Thus, the first question to ask is whether there is a liklihood that if a customer saw your fashion driven mark, he or she might be confused into thinking there was some association with the driven mark. Many factors are evaluated in making this determination. The first, is a comparison of the products and services involved. Are they related in some way? One example I use often is 9 Lives. There is a battery and a cat food both bearing this brand name mark. Now, no one would be confused into thinking that cat food and batteries came from the same source. Therefore, the marks are not confusingly similar and both coexist for different products.
Other factors include the consumer commercial impression or perception of each mark. Would the addition of one extra word be sufficient to differentiate the two sources in the mind of the consumers?
Some words are very distinctive. Some words are very common. This plays a role in how a consumer will differentiate between the two marks. The more unique or unusual the term, the stronger it is and more likely to seem distinctive in a consumer's mind. Words that are common, however, cause a consumer to look at more that the word alone in analyzing the source of the goods or services.
As you can see, there are many factors involved and for that reason, you should not conclude the mark is not clear to use. Consulting with an experienced attorney will be well worth the time. You can only make good business decisions with good information. Since you are here in Rochester, you might also visit the Chester Carlson section of the Rochester Public Library downtown (Rundell branch). It has a section devoted to patent and trademark and has some trained librarians that can guide you in some DIY research. That also may have copies of presentations by myself and others that address how to do a trademark search and how to interpret the results. This a great resource that I find many people don't even know we have. It is well worth a few hours to see what you can learn if you plan to proceed on your own. I do, however, strongly recommend that you consult a trademark attorney. Experience matters in evaluating the issues and having a good feel for the outcome and work-around solutions that might exist.
The fact that Driven is trademarked does not automatically mean that you cannot use Fashion Driven or apply to register the trademark. Your company name and trademark can be different. In answer to your questions, you can use Fashion, Driven on the side of your truck. I checked with the Trademark Office and Fashion Driven has not been trademarked. If you need additional guidance with registering your mark, please contact me.