Houston, TX asked in Trademark for Texas

Q: "Red White & Due" is trademarked for T-shirts. Can I use the phrase "Red White & Almost Due"?

For Etsy sales

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1 Lawyer Answer
John Martin Hilla
John Martin Hilla
  • Trademarks Lawyer
  • Livonia, MI

A: You are asking for specific legal advice with this question, and it is not likely that anyone will respond with any particularity without a retainer agreement and retainer fee. In responding to this question as phrased, an attorney would be creating an attorney-client relationship and subjecting themselves to possible malpractice liability--for no benefit to that attorney.

If you are interested in registering a particular trademark and would like to ensure that your proposed mark will not encounter a USPTO office action or opposition to registration and that it does not infringe on another mark, you should consult a trademark attorney to schedule an initial consultation and engage in a private discussion.

Many attorneys offer free consultations, some, like myself, by phone or virtually, but more information will be required than what you've provided here.

In your case, however, it is important to note that a name or logo identifying the source of goods in interstate commerce is what is protected in trademark registration. A catch-phrase printed on a t-shirt does not do that. The name on the tag of the shirt is what would be registered as a trademark. For example, I might have t-shirt with the word "Splurgle!" printed on the front, but, if that says "Fruit of the Loom," Fruit of the Loom is the registrable mark.

That said, the first step in the trademark registration process is a comprehensive clearance search, before any registration application is filed, to ensure that your mark and your brand are unlikely to encounter the sorts of issues mentioned above--or to let you know before committing yourself to an application that it may encounter such obstacles.

Many trademark attorneys, including myself, service clients nationwide and not simply locally as trademark as a Federal practice.

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