When you’re just starting to build your business, your intellectual property is often one of your most valuable assets. That’s why protecting that intellectual property from would-be infringers is one of your top priorities. The problem, though, is that people don’t always understand what constitutes infringement and what doesn’t. That can be due, at least in part, to the fact that the answer isn’t always clear.
Some instances of infringement are clear. If, for example, you have a jewelry company with a trademarked name of Romantic Stones, and another company comes along and starts selling jewelry under the name Romantic Stones, you have a pretty clear-cut claim for trademark infringement on your hands. But what if the other company is going by the name of Romance by Stones? You understandably might be a little less clear on whether or not your intellectual property is at risk.
Even if a competitor is using a word or a phrase that isn’t identical to your trademark, it’s still possible to bring a claim for infringement if you can prove “likelihood of confusion”. In short, this means that you can stop your potential infringer from using the name in question if a reasonable consumer would likely be confused by the continued use of it. Of course this goes the other way too, a company my come at you for the same thing and that’s why you need to do a trademark search before you file any trademark.
A number of factors play into the likelihood of confusion, including how distinctive your name is, how similar the other name is (whether in sound, wording, appearance, or connotation), and how similar you products or services are. If two companies have similar names, but one makes jewelry and the other makes engine oil, the likelihood of confusion is probably low.
There’s no strict rule for determining what is confusing and what isn’t, but looking at trademarks that have been found to create a likelihood of confusion helps shed some light on the issue. The following trademarks have been found by the courts to be too confusingly similar:
- Magnavox (electrical and sound equipment) vs. Multivox (musical instruments)
- Hpnotiq (liqueur) vs. Hopnotic (beer)
- Mr. Clean vs. Mr. Rust vs. Mr. Stain (all cleaning products)
- Canya (soft drinks) vs. Cana (frozen fruit and vegetable juices)
- Seycos (watches) vs. Seiko (watches and clocks)
As you can see, similarity and likelihood of confusion can take many forms.
Protecting your intellectual property is serious business. As with anything that might impact your livelihood, it’s always better to be safe than sorry. If you have any doubt whatsoever as to whether or not someone is infringing on your trademarks by causing likely confusion, you should consult with a New York trademark attorney to determine your rights. The same is true if you’re concerned that you could be accused of infringing on someone else’s trademark by causing a likelihood of confusion.
Intellectual Property Guidance for Growing Businesses
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