Logo Issue: Too Similar to Another Company

[Sonny]

Originally Posted by Cajungaltx

I had someone on the forum tell me that my logo looked familiar to them and they showed me the 'other' companies logo.

Meh, what does that person know.

[Cajungaltx]

Originally Posted by Sonny

Meh, what does that person know.

ROFLMAO... me either...

[Jeff Lane]

Originally Posted by JaertX

Whoah... no kidding! I've never noticed those before... good point. This linky thing's not working, but it's really worth Googling those two logos and looking.

Trademark law has more to it than "they both have a 'd' and a 'b' and they kind of look alike." TM law is designed to protect consumers from being confused by two competitors having such confusingly similar marks that consumers might accidently buy the wrong stuff. There are multiple elements to an infringement claim (which is not quite the same as a dilution claim, which is not quite the same as a disparagement claim, etc.).

I doubt that too many folks confused Minolta with AT&T. But if you're concerned about the possibility that someone may accuse you of infringement, or that somebody's use of a mark might be confusing your clients, you should consult someone who is familiar with all the issues.

[kenw]

Originally Posted by Jeff Lane

Trademark law has more to it than "they both have a 'd' and a 'b' and they kind of look alike." .....

exactly my point. If the Minolta and AT&T trademarks passed muster, I have no doubts yours can too.

Time to move on.

[cooltouch]

Originally Posted by kenw

exactly my point. If the Minolta and AT&T trademarks passed muster, I have no doubts yours can to.

It also depends a lot on the litigious nature of the party that may think its trademark is being infringed upon. McDonalds comes to mind. They've been known to sue over trademarks and especially spellings in which "Mc" is used, that might not even vaguely resemble theirs. Doesn't matter if the "offending" party's business does not intersect with McDonalds at all.

Still, I wouldn't worry about it.

[kevin hoehne]

Good logo, it should work well for you.

[DavidsStudio]

My feeling is that they are not even close.

If I were playing a lawyer on TV, I would tell you that if you are really worried about it, send a copy to them of your logo and ask if they have any concerns about it being too much like theirs. If they don't, you have written proof and if they do, you may be able to work around it. Much easier than guessing.

Just an old guy's $0.02 worth.

David

[janikphoto]

Originally Posted by Thomas Campbell

I would bet that if you looked hard enough, you could find LOTS of photographers that wanted to do the same thing.

Yeah, you two are DEFINITELY not the first to have logos that look like that. They are different enough... And did I miss where you posted a link to this "How To Do Business In TX" book? I want one to review. Who knows what stupid mistake I've been making all these years.

[texkam]

I'm a graphic designer. 1. They look quite different. 2. They are for different businesses. 3. It doesn't appear that they've even registered their mark.

I believe if you make it through the registration process without anyone challenging it then you're good to go. If they never registered theirs then they'll have to worry about infringing on YOUR registered trademark.

Bottom line, most small operations don't want to go through the time, effort and expense of legal action like big global companies.

Good luck

[janikphoto]

It looks like it is "first come first served" in regards to logos. If it is found that two companies have logos that are too similar, the first one did not have to actually file paperwork to register the logo. The first person using it would win:

4. How are trademark rights acquired?
Trademark rights are not acquired through the registration process. Common law ownership rights are acquired through actual use of the mark in commerce. Generally, the first person to use a trademark is the first person to acquire rights to the mark.

[Jeff Lane]

Jason, I'm not pickin' on you, bro, but you have to be really careful here, because although the statement you quoted is technically pretty much true, it assumes some facts not clearly stated in it, that make the impression you might get from the statement dangerously untrue. For example, you drew the impression that "The first person using it would win." Walmart v. Samara and other cases tell us that this is emphatically NOT true.

Yes, trademark rights are not actually "acquired" through the registration process. They are acquired through use of a protectable mark in commerce. But a mark is protectable because it has something called "secondary meaning" which can be established either because: (1) the mark is inherently high up on the "spectrum of distinctiveness" (going from fanciful and/or arbitrary, to suggestive, to merely descriptive, to "generic"); or (2) a non-generic term that is somewhere closer down to either "suggestive" or "merely descriptive" has been used so long and so extensively in connection with only one product that it has obtained "acquired secondary meaning" -- most people can only think of one thing when they see the mark (think "Whopper" or "Frosted Mini Wheats"). Stop and try to diagram that last sentence, and you'll get a feeling for how frustratingly difficult this analysis is in real terms.

Although a purely fanciful term can obtain trademark rights without registration, you'd be hard pressed to sue an infringer, in large part because your use of the mark in a limited market, or sales to limited customers, or a limited beginning advertising budget, would mean that the infringer would be very much able to prove good faith in using the mark and that no consumers were confused or were likely to become comfused by competing uses of the mark. On the other hand, registration puts the whole world on notice that your mark is there and connected with your product.

And yes, rights that are called "common law" rights arise through the consuming public's growing association of a mark with your product or service. This is a LOT different from copyright, however, because copyrights arise as soon as you fix your creative impulse in a tangible form, but common law trademark rights can only arise and be strengthened by use over time in a large enough market to make a "this is the sole product I think of when I see the mark" kind of impact on the consuming public. Do you have the budget and time to establish that "sole connection" kind of association? If not, register the dadgummed mark.

And yes, the first person to actually acquire trademark rights has rights to the mark. But as we've seen, establishing those rights outside the registration process makes proof of acquisition of rights much more difficult (in practical terms, impossible for all except those with bottomless pockets to pay lawyers and survey experts), and makes proof of infringement much more difficult, as well.

Then again, the key question is confusion in the market. So even if someone uses a logo that is "similar" (a measure that is always in the eye of the beholder), that doesn't mean much in any ensuing litigation, without some evidence of likelihood of CONFUSION.

I know this is a long diatribe, but I have to admit, I get a little crazy and frustrated with some folks trying to be helpful offering what looks (even to me, frankly) like common-sense impressions. This is too complicated an area of the law, however, to be left to amateurs, or to be answered in a forum like this one.

Registration is relatively cheap, and frankly, it is something that an amateur can do on her own, or maybe with a helpful nudge from someone who has prosecuted several trademark applications. Determining whether a particular mark is protectable or is a potential infringement is something better left to the pros, who can do it with the benefit of volumes and volumes of information and experience.

After all, I'm not taking out my own appendix, and I appreciate the skill of those who do. I don't even hold myself out as a "pro" or "semi-pro" photographer, because I have too much respect for the folks here who have done this and done it well for a long time. I'm just a guy who bought a camera, and wants to use it as well as I possibly can. Don't be that same guy with respect to playing a lawyer in this forum.

Good luck, Donna

[texkam]

Yes, a long diatribe, but very informative. Thanks for the info. Makes you appreciate the skill and knowledge involved in lawyering as well as photography and logo creation.