I start a new BRAND FOR 3 PRODUCTS OF ONE OF THE PRIVATE labeling manufacturer in united states.I named our brand similar to another brands but not exactly same.
i saw a lot of diferent similar brands name and trademarks all similar but different companies.
please explain this if we can use similar trademark as long as they are not exact same name.
You are asking for the answer to a question that has millions of potential responses. The only way you are going to obtain an answer is to pick a name that is unique and not too descriptive. Something no one else has. Any words that are merely descriptive may not be distinct enough to claim trademark rights. So you will need to consult a local trademark attorney in private. Many of us offer free initial consultations. Why not use one?
The closer that "similar" is to "likelihood of confusion" the more likely you are to be sued. So, no.
The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.
You ask "if we can use similar trademark as long as they are not exact same name".
If you have a trademark which is "confusingly similar" to another's U.S. registered trademark, which existed prior to your use, for the same or similar good/services then in all likelihood you have a trademark infringement concern.
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.
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 CA 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.
You're treading in dangerous waters when your name is similar, even if not exactly the same. The relevant standard is whether there is a likelihood of confusion among consumers. From the information you've given, that determination cannot be made. Before going further, I would advise you to seek the opinion of a trademark attorney regarding the use of your name. You should also consider an alternative name that is unique but non-descriptive just in case you are forced to change your name.
Keep in mind that the names don't have to be the same for there to be a likelihood to cause confusion. Prior to using the name or filing a trademark, it's best to consult a qualified trademark attorney to help you make a more informed decision and to ensure you fully understand your options.
This answer is for general informational purposes only and is not intended to provide legal advice. This communication does not establish an attorney-client relationship between The Law Firm of Andrea Hence Evans, LLC and the user.
Whenever you select a proposed trademark that is "similar" to an existing trademark in the same or related business, trademark attorney's get very nervous. As you probably can see from the prior answers, it takes a lawyer skilled in trademark law to answer the question, and that lawyer has to have all the specific facts. Here's why:
To find trademark infringement a court uses the “likelihood of confusion” test. The court must determine that potential purchasers of the goods or services with the allegedly infringing mark are likely to be confused as to source, origin or sponsorship of the goods or services. This test involves many factors. For example, in federal court in California the test involves 8 factors. In other areas of the country there may be more or fewer factors, but the tests are still roughly similar. In my experience, the most important factors, especially in trademark office proceedings, are normally:
How strong is the trademark owner’s mark (e.g., “Gallo” is very strong because of the extensive sales and marketing);
How close is the infringing mark in sound, appearance, or other way to the trademark owner’s mark; and
How close are the infringing goods and services sold using the mark.
The other 5 factors are:
Has there been actual confusion of potential purchasers;
Did the alleged infringer intend to trade on the good will of the trademark owner;
How close are the channels of trade (generally, do both trademark owners sell their goods or services in the same way, e.g., by online, physical catalog or brick and mortar channels, and sold to individuals, retailers, distributors, wholesalers or other types of businesses);
Are potential purchasers sophisticated and careful or are they unsophisticated and impulsive; and
How likely is it to potential buyers that the trademark owner would expand into the same line of products or services as the alleged infringer.
This multi-factor test may be applied differently depending on the judge, jury or court of appeal in litigation, or an examining attorney or TTAB in Trademark Office proceedings.
Information provided in this post is for general knowledge only. It is not intended to be and should not be taken as legal advice. There can be many facts and circumstances that affect the answer, and the laws may vary in your jurisdiction. Further, providing this post does not create an attorney client privilege. Your question and this post are not protected by any privilege. You should always consult your own legal counsel whenever you have a legal question.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline