I know my question is not worded correctly, but here is my dilemma. I've owned a pet sitting company since 2003. As a way to make my company known, I put black Dalmatian spots all over my white car. My car, and the Dalmatian theme is what I've used to brand my company... However, in the past couple of years, another person in my area has decorated their car with Dalmatian spots too. She is not a pet sitter... and I've only spoken to her once. Are there any legal ways that I can prevent someone from copying my idea and the primary concept I use to make my company recognizable. I don't want people thinking that this other person is me! I don't want people to mistakenly think that this person represents my company. Can I do anything about this?
Use of words, symbols or devices similar to those used by someone else for commerce in a similar good or service can be trademark infringement. If the use is not for a similar good or service, meaning that the good or service is such that no consumer would be confused as to the source of the good or service is not infringement. See Intellectual Property counsel.
My comments have been made without discussion. An attorney client relationship has not been established. There may be conflicts which prohibit my providing you with specific legal guidance. Any contact with you beyond these few general words will start with a disclosure of opposing parties so that a conflict check can be made. You should discuss with an attorney.
I recommend you contact a Trademark attorney who can assist you in determining the scope of protection available to you and if you have any enforceable rights in the trade dress of your vehicle.
Your spotted car may be trademarkable but I think you face an uphill battle demonstrating marketplace recognition.
If you really wanted to trademark a spotted car, you should register your trademark and use the spotted car image on everything related to your business. Trademarks are very important, but they aren't necessarily very intuitive. You should contact an attorney to help you strategize a plan for getting and protecting your trademark.
As others have said, you have an uphill road to protect Dalmatian spots in your locale much less nationally as a trademark. But, it's worth a half hour consultation with a decent trademark lawyer to explain what you are looking at if you want to try. Good luck
The short answer is, yes, the dalmation-spot appearance of your car to brand your pet sitting services is very likely protectable "trade dress" [a type of trademark]. If it is, then no one but you in the geographic area you serve can brand their pet-related services by using the same or confusingly similar dalmation-spot appearance on their car. Because your trade dress would be pigeonholed as "product packaging" you would not need to prove that it's distinctive.
However, anyone that's NOT offering any service from their car can paint their car the same way you do and even those who do offer services that are unrelated to the pet industry can as well. Your trade dress rights extend only to prevent confusion among your customers and potential customers -- not to the world in general.
Speak with your own Texas-licensed trademark attorney. It's likely only Texas state trademark law applies and not federal trademark law because your services are likely not offered in any other state [federal trademark law only applies to commerce that can be regulated by Congress -- which is, essentially, interstate commerce, not commerce occuring in only one state]. 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.
You received some good advice. I think you might be asking the collateral questions upfront. While I certainly see what you are asking and also agree that this is really a trade dress issue and most probably protectable I would really start with the prudent task of a comprehensive clearance on the name of your business and perhaps filing any logo (image trademarks) associated with it.
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 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. See the link below for a brief article from Fox Business News on the importance of the due diligence process and our overview guide.
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 phone consultation, get some insights then pick the best fit to work with.
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.
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