Q: Can I be sued for making shirts of a cactus person? Someone claims to have a trademark for a similar character
How can I know if they truly have a trademark/copyright? Can one single person own the concept of animal/plant heads on human bodies?
A:
Understand that, in order to have viable trademark rights, either at the state or federal level, the user of a particular mark does not actually have to register their mark. This, then, makes it somewhat difficult for you to know the scope of any rights they may or may not have. If they actually have registered a mark (found either through the Arizona Secretary of State or the US Patent and Trademark Office), then at least you can see the specific appearance of what they registered and the scope of the products and/or services with which they assert their rights.
When it comes to "similar characters," a person cannot trademark or copyright an underlying idea. Trademarks protect an image or logo (or words, slogans, etc) as used in conjunction with the sale of a particular type of products and/or services. If you would be using a mark in conjunction with the sale of the same or similar types of products and/or services, then the analysis is as to whether your mark is confusingly similar to theirs. That analysis can be a difficult one to make, as there are many factors to consider, and there is no black and white answer.
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