I want to use the business name, Mermaid Hair or Mermaid Hair Wigs and Extensions and there is a business operating under Mermaid Hair Extensions in my state... Not exactly the same but I don't know what the rules are. Please and Thank you.
Oh forgot to mention this will mainly be an Ecommerce site I'll be selling from... some local here and there maybe but mainly online through Shopify and websites like that.
The "other business" is Mermaid Hair Extensions 14 Lakeshore Plaza Kirkland WA. ×. Phone Number: (425) 827-5664. Website: mermaidhairextensions.com
Basically the issue with trademarks or service marks is whether the names are substantially similar, and whether the consumer is likely to be confused or deceived about who they are dealing with. The Mermaids above are brick and mortar hair stylists who do in-shop sales/installations of extensions. Your online business is not likely to do any of those types of services.
Most people simply add a word at the beginning of a trade name to make their trade name distinct enough to legitimately call it unique enough. "The", "A", "My" etc. can all be added. I'd avoid "Little" for obvious reasons.
You might try calling the Mermaids and discuss with them what they will or will not consider an infringement of their name or mark. Most entanglements are avoidable by effective communications.
While further information is needed, it is likely that your proposed business name will infringe the trademark rights, or at least consumer protection rights, held by the existing company regardless of how your goods and services are offered in Washington state and its similarities with the prior registrant. Even if the prior company has not registered their name as a trademark, or otherwise qualify their name for trademark rights, your use of the proposed name may still subject you to state consumer protection violations (known as passing off).
Working with a qualified Washington state intellectual property attorney with trademark experience can further assess your title to the proposed name, and potential risks. Good luck!
This response is only general information and is not legal advice. It does not form an attorney-client relationship and should not be relied upon to take or refrain from taking any action. You should seek a qualified attorney before taking any action related to your inquiry.
The standard in this case is likelihood of confusion. The issue is whether the existing business has a Federal registration which gives them powerful legal rights if they decide to litigate. You should discuss this with a local trademark attorney in WA state. IMO opinion you are already across the threshold of confusingly similar under Federal law and most likely under unfair competition laws in WA state. The suggestion that you contact the existing business and determine what they would regard as an infringement is a reasonable course of action but it may invite a cease and desist. So in your consultations with a WA attorney you might want to consider other possible names,
My answers to questions posted on AVVO are generalized answers that should not be considered sufficiently specific to constitute legal advice and the question this answer is in response to is not sufficiently specific as to the facts to constitute advice on any specific legal issue and thus there is no attorney client relationship established by this general statement of the law. Any citations provided should be researched to ensure they reflect current law.
That would be a problem and you should simply pick a more distinctive name. In fact, we don't even know whether that name is already protected federally even if the business is far from the state of WA.
This is really a trademark matter and should be approached that way. Before you invest in any trademark make sure you get some legal guidance upfront. It is of course best practice to clear it before you start using any trademark and starting with a strong one is your best strategy. Know as well that merely registering your business name with a state or county agency or acquiring a domain does not convey any right to use that name in commerce as a source identifier or trademark. For example, I can presumably register my new tech start up "Boogle" with the WA secretary of state because there is no other business already doing business there under that name, but this does not mean that I would not be infringing on the Google trademark, which I would be. The onus is on you to ensure the name you choose is not a problem.
Your trademark will be one of if not the most important and valuable business assets you will have and you will ultimately spend more money in support if it than you will anywhere else (advertising, marketing, PR, branding, packaging, etc.). So you owe it to your business and yourself to make sure you handle this properly upfront and the first order of business always starts with a proper and comprehensive clearance.
Whenever you endeavor into investing in a trademark it is very important that you conduct the proper clearance due diligence on all the text names upfront and before you start spending any money in support of it or submit an application to the USPTO. In the US, this means searching under both federal (USPTO) as well as common law because trademark rights stem from use in this country NOT registration. This means that acquiring a federal registration does not necessarily mean that you are not infringing on another's intellectual property.
If you need more clarification, I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free consultation, get some insights then pick the best fit to work with and know you are free to work with counsel located anywhere as you have many options available not just those that provide services in your home state.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Legal, LLC on the basis of this posting.
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