I came up with the band name Midnight Drivers and found that someone else has the same name but without the s at the end (Midnight Driver). I don't know if the two are too similar or if I'm in the clear.
Yours is definitely not a prenuptials question, and likely more of a trademark/copyright/property question so I have changed the practice area to allow the appropriate attorneys to respond.
The responses provided here do not constitute legal advice and are not a substitute for legal advice. Please consult an experienced divorce and family law attorney for additional information.
Too close -- this is a real issue and problem.
Look up Dilution too; even though this does not seem to be a "famous" mark.
Generally, if your trademark is confusingly similar to someone else's trademark and you are selling the same good/services then there is a trademark infringement problem.
You should discuss with an intellectual property attorney in a private consultation.
Legal Disclaimer- the information provided herein is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney / client relationship. Although effort has been made to ensure that the answers are correct, Law Office of Walter Tencza Jr. cannot and does not offer any warranty, express or implied that the answers contained are accurate statements of law. This document is provided for informational purposes only. Viewers must not act upon any information without first seeking advice from a qualified attorney outside the context of this document.
There is no difference from a trademark perspective as between "Bed, Bath and Beyond" versus "Beds, Baths and Beyond." But we are also not confused as between Delta Airlines versus Delta faucets. So the goods and services the mark identifies matter a lot. You need a proper clearance.
Before you invest in any trademark make sure you get some legal guidance. 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 IL 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.
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-Lapin, LLC on the basis of this posting.
Unfortunately, your name is considered to be identical to the other band name as adding an s or changing the spelling or adding punctuation will not be sufficiently different to take you out of the realm of consumer confusion and you will have to change the name unless you can prove you were using it first.
Like any potential branding conflict over the same trademark the analysis focuses on where the two brand owners are operating and who buys the branded products or services. If the brand owners operate in geographically remote areas or sell to a different group of consumers, or both, then it may well be lawful for both to use the same trademark. Only your own Illinois-licensed intellectual property attorney can do that analysis for you, however. Good luck.
The above response 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.
Yes, those names are too similar. I assume that you just came up with your name and that the other band was using it before you. Another question to ask is whether the other band has used the name continuously. In certain circumstances, a trademark can be abandoned. You should seek the guidance of a trademark attorney to advise you regarding this matter, or pick another name that hasn't been used.
Our Rating is calculated using information the lawyer has included on their profile in addition to the information we collect from state bar associations and other organizations that license legal professionals. Attorneys who claim their profiles and provide Avvo with more information tend to have a higher rating than those who do not.What determines Avvo Rating?Experience & background
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline