Milford, PA asked in Trademark, Copyright, Business Law and Intellectual Property for Pennsylvania

Q: My question is about avoiding violating a third-party trademark.

My question is about avoiding violating a third-party trademark.

Here’s a quick summary:

A third party, let’s call them “Tower, Inc.” took a dead trademark (which lived from c. 1870-1970) and filed to bring it back to around 2000. Tower, Inc. now uses the trademark in new consumer products.

I am looking to monetize public domain images from 1870-1890 that have the dead (and now revived) trademark in the images. I will be using the images to sell posters, tote bags, beach towels, etc.

My main questions:

Does Tower, Inc.’s trademark from 2006 (to present) give it rights over that dead trademark from the 1800s?

Would I be in violation of that modern-day trademark if I commercialize the images that include the old, dead trademark?

It seems to me Tower, Inc. shouldn’t have retroactive rights, but I’m neither a lawyer nor a trademark expert! I hope someone on this site who is can offer some advice. Happy holidays!!

Many thanks!

1 Lawyer Answer
Timothy John Billick
Timothy John Billick
  • Trademarks Lawyer
  • Seattle, WA

A: It depends on how you use the trademarked image. Trademark infringement depends on a lot of factors such as: (1) strength of the marks, (2) relatedness of the goods, (3) similarity of the marks, (4) evidence of actual confusion, (5) marketing channels, (6) degree of consumer care, (7) defendant's intent in selecting the mark, and (8) likelihood of expansion of the product lines.

It would also depend on the difference between what is in the public domain vs what was trademarked. You should consult with an experienced trademark attorney.

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