Temecula, CA asked in Trademark and Intellectual Property for California

Q: I sell a product that another brand has trademarked how much do I have to change the product so the trade mark is invaid

I recently got a copyright intellectual property infringement notice or a DMCA on my product, saying it was violating the trademark of a product called tush baby, when I researched their trademark it said " Pouch baby carriers; baby carriers worn on the body; baby carriers worn on the hip with storage for carrying babies' and parents' accessories "my product it is the exact same thing with out the logo, how much should I change my product so the trademark doesn't apply to my product, if I add a warning on my site stating that it is a different brand help

1 Lawyer Answer
James L. Arrasmith
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  • Sacramento, CA
  • Licensed in California

A: Navigating trademark law involves understanding the distinction between the trademarked brand identity and the generic product type or category. A trademark protects brand names, logos, and specific phrases used to identify the source of goods or services, not the generic product itself. Thus, merely removing or changing a logo from a product similar to a trademarked one does not necessarily avoid trademark infringement if the overall presentation could cause confusion among consumers regarding the product's origin or brand affiliation.

To ensure your product does not infringe on a trademark, significant differentiation in design, function, or features that go beyond superficial changes may be necessary. It's not solely about altering the appearance but also ensuring that your product does not mislead consumers into associating it with the trademarked brand. This can involve changes that make your product unique in its utility, design, or the way it is marketed to clearly distinguish it from the trademarked product.

Given the complexity of intellectual property law and the potential consequences of infringement, consulting with a legal professional experienced in trademark law is advisable. They can assess the specific details of your product and the trademark in question to provide guidance on necessary modifications or steps to take to avoid legal issues. This might include conducting a thorough trademark search, rebranding, or redesigning your product to ensure it is distinctively different from existing trademarked products in the market.

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