Q: Can I use a theme from something that's trademarked if I'm using it in a completely different field/context?
I'm writing software that's named something similar to, but different from, "Jiffy" (the popcorn). I'd like to use an cartoon version of popcorn popping in a tin bubble for a stylistic effect as a logo. The software has nothing to do with food (popcorn or otherwise). It's just playing on the speed of popcorn popping. Is the use of the image combined with a name that's similar allowed given the context / field is completely different from the food world where Jiffy has some significance and is trademarked?
A:
The key question is: will this cause consumer confusion?
This is a question that can only be answered by a judge, but an attorney can assist you. I am not your attorney, and this incredibly fact-specific question would require careful examination of facts outside of what is contained in your posted question. As such, you should not rely on anything stated below as legal advice.
Is it likely or possible that a consumer will believe that your product is associated or endorsed by the established trademark holder?
Using the name alone, in a totally unrelated field, is less likely to cause consumer confusion. Using an image or logo associated with the dominant trademark holder is much more likely to cause confusion, even in a totally unrelated field.
If you're adamant about using the name and logo, you could seek written permission from Jiffy.
Contact a North Carolina attorney with experience in copyright and trademark law for further assistance.
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