Student query: can you be accused of unfairly competing with an entity if you avoid all use of their symbols, names etc., but use an image that might bring them to mind, but that they have never used themsleves?
For instance, say that the L.A. Kings hockey team had never used the figure of a king as a symbol (they may have, I do not know, but for example). Then somebody makes a t-shirt with a king on it. I assume that is not an infringement, as there are many of those available out there. But what if the king was holding a hockey stick? Would it matter if the shirt was just being sold on the net, or only in Miami, as opposed to right across the street from the Kings' arena? Can you infringe with something that may bring an entity to mind, even if its entirely your own creation?
Thank you Mr. Ballard -- that was a great case cite that should really make it into a case book some day, and it certainly cleared up some fuzziness. I still do have the one question though, factually distinct from the situation in that case: in eAcceleration the company actually did have a mark they were using. My query was what if they did not? i.e If Budweiser calls itself "The King of Beers" but has never used the image of a king as a mark, could they claim infringement if another beer company advertised with a beer can with a crown on top of it? There would seem to be a chance of confusion (indeed it might be the reason the other company used it), but do we perhaps never even get to the confusion test because there is no mark to be unfairly competed against? Or does the "the king of beers" phrase work as the mark, even if they have never used a crown or king graphically?
Anyway, thank you very much for the cite. My resources are limited out here during the summer. I appreciate the help. Save