Glendale, AZ asked in Copyright and Business Formation for Arizona

Q: Can I use use the brand name "The Vape Collection" if it's taken for a completely different field or industry?

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2 Lawyer Answers
John Espinosa
John Espinosa
  • Lowell, MA

A: Trademarks protect brands, not copyrights. A trademark protects the use of the brand in the particular industries, or classes, listed on the trademark registration. Here is a resource:

Brad Denton
Brad Denton
  • Intellectual Property Lawyer
  • Mesa, AZ
  • Licensed in Arizona

A: In theory yes, in application I would advise against it. Business names, brand names, copyright, and trademarks are typically evaluated in the same way.

Courts will typically evaluate: (1) Whether the other business is in the same industry; (2) Whether the other business is in the same geographical market; (3) Who was using the it first; and (4) Whether it is registered for trademark protection.

If it is going to be in the same geographical market is an open question. It appears “The Vape Collection” has been trademarked which entitles them to additional protection. When you say a completely different industry how different are we talking about? I presume the original “The Vape Collection” has to do with E-Cigarette’s. If you are selling anything smoking related that will probably be the same industry. If you are introducing a new line of tractors that you wish to call “The Vape Collection” that might be a different enough industry, but if it is in the same geographic market it still may be problematic.

Really what is examined here is the likelihood of confusion to a consumer. If someone could be uncertain of which “The Vape Collection” they are dealing with or the trademark holder decides they don’t want you using their trademarked term you are going to have issues. You might be able to prevail in court if is different and distinctive enough but not without long and costly proceedings.

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