Valley Stream, NY asked in Intellectual Property and Trademark for New York

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.

2 Lawyer Answers
Fritz-Howard Raymond Clapp
Fritz-Howard Raymond Clapp
Answered
  • Trademarks Lawyer
  • Beverly Hills, CA

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

Daniel Michael Luisi
Daniel Michael Luisi
Answered
  • Trademarks Lawyer
  • BROOKLYN, NY
  • Licensed in New York

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.

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