Q: I came up with a name Max Level Gear for a clothing/gaming accessory brand and I'm trying to verify I can use that name.
Can I create a brand that's named Max Level Gear or Max-Level Gear for a gaming clothing brand? I searched online and it seems someone is using Max Level Apparel for a gaming clothing brand. So is that infringing on them? We are selling similar things but my name is slightly different.
A: The slight difference in the marks is not significant, so either could claim infringement for use on similar goods, but the deciding factor in which one prevails over the other is which use was prior in time.
Daniel Michael Luisi agrees with this answer
A: The Lanham Act prohibits using a same or similar mark if it is likely to cause confusion among consumers. You need a comprehensive brand research analysis to answer your question, as trademark ownership in the US is segmented based on use in commerce in any part of the territorial United States. You want to research well before making a significant investment. Especially since the US Supreme Court recently authorized disgorgement as a remedy in virtual all successful infringement actions. Meaning that once the rights owner obtains a judgment that your mark is likely to cause consumer confusion, you can be ordered to turn over ALL your profits to the rights owner, regardless whether you have that kind of cash on hand to cover. An ounce of prevention is worth a pound of cure.
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.
