Re: Re: Business names and trademark conflicts

Subject: Re: Re: Re: Business names and trademark conflicts

Comments:
: : Dear John, : : Im just a second year law student so don't take my advice as legally binding. : : Disclaimer aside, there are 2 things you need to understand about infringement. : : 1. Infringement is usually a subjective term. : : You are usually not an infringer until a judge says you are. : : The reason I mention this is because even though you are subject to an infringement action if you use the trademark, you have to consider the probability that the other company will actually sue you. If you feel that there is a high probability you may want to contact the other company and work out some kind of deal with them. : : 2. A judge's finding of infringement depends upon consumer confusion. : : -The court will employ what is known in legal terms as a "likelihood of confusion test" to determine if your use is infringement. : : -To make a long story short, the court will look at the probability that consumers will think that your greenhouse is actually owned by the other greenhouse you speak of. (i.e. because you use the other company's trademark in your name, will consumer's think you are, in fact, the other company?). If there is a likelihood of confusion, you will lose the infringement suit. : : In conclusion, the safest route is to change your trademark into something wholly original. Make it as "distinctive" as possible. : : However, if you are set on retaining the trademark, I would contact a trademark lawyer who could go into a deeper examination of your case. : : : : Best of luck, : : Jason Yearry : : I am trying to select a name for a business and I have a question concerning trademark conflicts. I am considering naming my business 'XYZ Greenhouse and supply' (fictitious). It would sell plants and greenhouse supply. I have searched and have found no businesses with this name or even close. However, I did find another greenhouse business with an unrelated name that has a trademarked plant that is named the same as the first word in my business name. I will call it 'XYZ' flower. The trademark only applies to a specific plant variety. Would this be trademark infringement? Should I just find another name? Thanks : Dear Mr. Yearry, : By the time it gets to a judge, it does not matter whose right or wrong. It is going to cost a fortune to the party, win or lose. : M. Arthur Auslander : Auslander & Thomas-Intellectual Property Law Since 1909 : 505 Eighth Avenue, New York, NY 10018 : 212-594-6900, fax 212-244-0028, aus@auslander.com : ELAINE's Workshop® : E arly L egal A dvice I s N ot E xpensive™ : Reality Check®

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