When is it infringement?
UPDATED: Oct 1, 2022
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When is it infringement?
I have been making and selling handmade jewelry for almost ten years. For the last few years, I’ve been slowly working on building a business out of it. I only started as a small hobby and recently decided to become more established. I received an email today from another company stating that I am using their name. They have a single line called Expletives where they hand stamp swear words into medal bracelets. I go by Expletives Creations and make all kinds of pieces all across the spectrum. I do not want to go back on all the hard work I’ve been putting into this business if I am not in the wrong. Is that too close to what they do? I don’t have money to go to court and battle but I don’t understand how 1 word can be a problem. Every word could technically be trademarked and I can’t have any name. What can I do?
Asked on September 6, 2017 under Business Law, Pennsylvania
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 5 years ago | Contributor
There is no easy answer to your question: trademark infringement is a VERY fact- and context-dependent question. A critical factor is who was there first: if you were using the term in commerce first, it is very unlikely that you are infringing them (since priority matters, they may be infringing you). Even if they were first in commerce, to vastly oversimplify, whether you on infringing depends on 1) the efforts they have made to protect the term "Expletives" (long story short: you have to take steps to assert trademark--it does not happen by itself); 2) whether the term "Expletives" was available for trademark protection (which depends on prior usage by others and on the "obviousness" or "generic-ness" or "descriptiveness" of the term in the context of their use [long story short: if the name is an obvious one for what someone does, it may not be trademarkable; trademark protects names that are not too descriptive or generic]); and 3) likelihood of customer confusion (would a reasonable customer mistake you for them or vice versa, based on what you do, who you sell to, etc.). This is the sort of legal question you *really* need to consult with a lawyer about: speak to an IP (intellectual property) attorney.
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