I want to trademark my company and logo Humbled Extracts LLC, est 2013. Another company has a trademark for their name is "the humble juice company LLC", do you think mine will be denied? The humble juice company make hemp vape liquid, we make hemp topical pain products. Both of our logos are extremely different and our websites.
Short answer YES. Trademarks are a source identifier and the major criterion in allowing a trademark to be registered is likelihood of confusion. Both your mark and the other company use forms of the word "humble" which is one source of confusion. Your company has the word "extracts" in the name the other company has the word "juice" in its name. Last time I checked I checked extract was synonymous with juice. This constitutes two major sources of possible confusion. You need to speak with a trademark attorney. If the juice company has already registered their mark, your could very likdely be seen as infringing, whether you try to register it or not. Cease and desist letter are not fun, lawsuits are even less fun and also expensive and in junctions can put you out of business - these are all remedies available to a registered trademark owner. See a trademark lawyer, pronto. I'm changing the category to trademark infringement.
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.
This is not usually the type of thing about which a public answer is helpful. You would be much better off consulting an attorney privately. Trademark registration first requires an application with a statement under oath that you (or your attorney on your behalf) do not believe there is another registration that is so similar that there is a likelihood of confusion. Likelihood of confusion is judged looking at as many as a dozen or so factors, but the two looked at first are similarity in the marks and proximity between the goods. The only word that is distinctive is Humble(d). Both of you sell hemp products. Hire a trademark lawyer.
There may be a trademark infringement concern.
You should have a US full trademark search done, which would include at least, USPTO registered trademarks, USPTO pending trademark applications, US stage registrations, common law trademarks, and internet domain names.
It may make more sense to file for a logo, depending exactly on what the logo looks like.
You should discuss with an intellectual property attorney in a private consultation.
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Humble Juice Company does have a federal trademark registration, so they have the presumption of the right to use the trademark throughout the entire US. Since you appear to be at the stage of choosing your name, I would strongly encourage choosing someting that does not even raise a question of infringement.
Try to choose something that suggests, rather than describes, a quality of the goods or services, or which has no apparent connection to the goods or services. A descriptive mark is not entitled to trademark protection until it becomes associated in the minds of consumers with a source of goods or services, which is called acquired distinctiveness or secondary meaning. Typically, this requires five years of continuous, substantially exclusive use, but more may be required in the case of a highly descriptive mark. A generic mark, which describes a class of goods or services, is never entitled to trademark protection. A suggestive or arbitrary mark, which is inherently distinctive, is entitled to immediate trademark protection.
Before adopting a trademark, I always recommend a full trademark search and clearance opinion. The search covers not only federal registrations, but also state registrations, telephone directories, Dunn & Bradstreet, trade directories, Internet domain names, Internet searches, and other sources of information about common law trademarks. Variations, fragments, and misspellings of the mark are searched, so that any mark that might present a risk of confusion is identified. The results of the search are then analyzed, and a written opinion prepared. If the results are favorable, then you can be reasonably assured that you will not receive a cease and desist letter after having spent thousands of dollars on signage, advertising, etc., making the search very worthwhile.
If the search results are favorable, then an application for federal registration should be promptly filed. This can be done based on a bona fide intention to use the mark, but actual use of the mark is required in order to complete the registration process.
Your trademark is intimately tied to your reputation. It is worth selecting and protecting carefully.
There is a very big possibility that your mark will be considered confusingly similar. The only thing that might make the difference is looking at how their goods/services are described, the variance between the stylized elements of your respective image marks and level of saturation that exists with the dominant part of the mark namely the root "humble" within the class. You can't get any specific clearance advice here over a free and public Q&A platform, this is something you need to hire TM counsel to help with.
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 PA 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.
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