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!!
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.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.