I am starting a cleaning business and I was going to use "Maid 2 Shine Cleaning Services " but someone has "Maid to Shine" trademarked also in the same type of business. Could I use "Maid 4 You"? Or would that be too similar based on the one word? Fine print about trademark infragments says "but not limited too", so it makes it a bit confusing.
The standard is "likelihood of confusion". I do not see confusion between the two names as indicating the same source. Other lawyers, (and/or the trademark examiner at the USPTO) may differ.
Good luck in your venture.
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.
Here’s the rule: It’s unlawful to offer to sell a product or service under a trademark that’s already being used, or one similar, if it’s probable that an appreciable number of ordinarily prudent potential purchasers of your product or service would likely be confused into falsely believing that it’s being offered for sale by the senior user of the mark or if the senior user sponsors, endorses or is associated with your product, service or company. 15 U.S.C. §1125(a).
Is "Maid 4 You"? likely to cause such consumer confusion in light of the already-being-used "Maid to Shine"?
Probably not, but only your own Tennessee-licensed intellectual property attorney can provide you with actionable advice. Before he does, he will commission a proper trademark clearance search and will evaluate the results because it is very, very likely there are quire a few other "Maid" marks that may be confusing similar to the mark you've selected [which, if only used in areas of the country far away from you, may not prevent you from using your selected mark]. 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.
In addition to what Attorney Doland said, one of the functions counsel will assist clients with is conducting what's called a "Knockout search" in order to determine that the proposed mark you wish to register is going to be clear from marks that could potentially pose an issue. So, while this particular example may not be likely to confuse anyone, there could be a number of other marks out there (they needn't be registered with the USPTO) that could prove problematic for you. Hence, it really isn't ever as simple as "Yes/No", if that makes sense--it's more about ensuring we've been entirely diligent before filing.
Answers provided by Mr. Robinson are for informational and educational purposes only and by no means constitute legal advice or counseling of any kind.
I agree with the prior response as to the likelihood of confusion. From my experience (I've filed hundreds of marks), you will likely not have any difficulty registering MAID 4 YOU, as it is distinctive from MAID TO SHINE. The latter registrant would have disclaimed the word "maid" apart from the mark as shown. You are correct that your first choice MAID 2 SHINE is most likely too close and would not pass the examining attorney's review, but your second choice should work. You should pay an attorney to obtain this mark for you and don't use any of the myriad online services. The personalized attention you'll get from your own personal counsel will make a difference in this matter. Good luck.
I'm sure you understand that this is not a place where you can receive specific trademark clearance advice. But in your example, at first blush that should not be considered a conflict with that other mark because there you are only sharing the one word "maid" and as you can imagine this is used a lot.
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 TN 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. See the links below on the importance of the due diligence process and common start up mistakes from Entrepreneur Magazine 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 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.
That certainly sounds like a problem. However, without a full trademark search and not knowing more about both companies, it is impossible provide you with a definitive answer. You can't obtain trademark clearance on this website, you need to retain your own experienced Trademark Attorney to clear your mark for use and registration and provide you with detailed advice, in confidence.
For more detailed advice, I recommend that you contact an experienced Trademark/IP attorney to advise you in confidence about your options and potential costs. Many IP specialty firms, like ours, offer an initial free conference by telephone, video conference or in person if you are available locally and would be happy to speak with you. Call and speak with an experienced Trademark attorney who can assist you.
Mr. Sack's postings on Avvo are of a general nature, based on the facts provided and are not intended to be taken as legal advice or to establish an attorney-client relationship.
The test that Trademark Examiners and Courts use is to determine if proposed trademark is too close to another mark is if the proposed mark creates a "likelihood of confusion" with an existing mark - that is, is the proposed mark so close to an existing mark that it is likely to confuse the intended consumer as to the source of the goods? If there is any question, play it safe and try another mark.
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