Q: Tho this band has "trademarked" their name.May I use the name for a business thats non musical/not inspired by them?
I'm looking to start a clothing/skateboarding company. I came up with the name of "Scythe" , or maby "Scythe Skateboards". But I looked online and found that there's a musical band called "SCYTHE", apparently they trademarked it like a year or 2 ago. But I in no way had the intention to copy they name or style. Is there any way I can legally use the name "Scythe" or "Scythe Skateboards"?
A: The success of a trademark infringement lawsuit depends on whether the defendant's use causes a likelihood of confusion in the average consumer.
The U.S. Patent Office explains on its website:
Generally, the court will consider evidence addressing various factors to determine whether there is a likelihood of confusion among consumers. The key factors considered in most cases are the degree of similarity between the marks at issue and whether the parties' goods and/or services are sufficiently related that consumers are likely to assume (mistakenly) that they come from a common source. Other factors that courts typically consider include how and where the parties' goods or services are advertised, marketed, and sold; the purchasing conditions; the range of prospective purchasers of the goods or services; whether there is any evidence of actual confusion caused by the allegedly infringing mark; the defendant's intent in adopting its mark; and the strength of the plaintiff's mark.
The particular factors considered in a likelihood-of-confusion determination, as well as the weighing of those factors, vary from case to case. And the amount and quality of the evidence involved can have a significant impact on the outcome of an infringement lawsuit.
In addition to claiming likelihood of confusion, a trademark owner may claim trademark "dilution," asserting that it owns a famous mark and the use of your mark diminishes the strength or value of the trademark owner's mark by "blurring" the mark's distinctiveness or "tarnishing" the mark's image by connecting it to something distasteful or objectionable-even if there is no likelihood of confusion.
An experienced trademark attorney, taking the particular circumstances of your case into consideration, should be able to provide you with an opinion as to the validity and strength of a trademark owner's claims.
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