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[robert-k]

If a Jean company A's BRAND NAME/Trademark "ATLANTIS JEANS" (for example) is used as a STYLE NAME for a line of jeans by Jean company B, did company B infringe on company A's Trademark?

The BRAND NAME "ATLANTIS JEANS" was not on Company B's Jeans but was the STYLE NAME of a line of their jeans and identified as such under the jeans on company B's and third party retailers websites. The jeans were also identified as "ATLANTIS JEANS" by sales representatives for company B's and third party retail outlets. In addition the jeans had a wave like design on its pocket and a tag with "ATLANTIS WASHED" on them.

Company B claims that it "never intended to use "ATLANTIS JEANS" as a brand," they claimed it was a technical error, "and the incidental use on the website was that of a STYLE name and not a BRAND, merely a STYLE name with no source identifying function."

Does their argument have any merit?

NOTE: Company A is not using this forum as a substitute for professional Legal advise. Company A has already retained a lawyer, but believes we may not be getting the best advise since their lawyer once worked for company B, and offers little or no hope for litigation and/or compensation.  

Background Information: Jean company A is a micro jean company, and company B is one of the top 10 jean companies in the world who licenses their Brand Name in over 50 countries. Company B had been selling their jeans as "ATLANTIS (style) JEANS" for several years.

COMPANY A's name and BRAND NAME, which are similar, could easily be found with a simple search on any of the popular search engines for the past 5 years. Company B's IP Lawyers either failed to do the most basic do-diligence or believed that their client was not infringing.

Any comments about BRAND vs. STYLE would be appreciated.

[JSonnabend]

First of all, your attorney may have violated ethical canons by representing you without first divulging his former representation of the adversary.  At the very least, if you are not confident in your representation, then you should immediately find new counsel.

As for the fact pattern, it was difficult to follow to say the least, but the long and the short of it may be that if Company B used a mark similar to that of Company A's "style name" (which is likely no different than any other trademark, legally speaking), then Company B may be infringing that mark.

I routinely handle matters like this, as do others on these forums.  I urge you to contact a new attorney to get your house in order.

- Jeff