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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Intellectual Property Law
Satisfied Customers: 41221
Experience:  I assist my clients with IP questions that arise in their daily course of doing business.
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Im developing a brand called "Gethard" and I noticed an unregistered

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I'm developing a brand called "Gethard" and I noticed an unregistered T-shirt business that is trademarked as "Get Hard" Both companies are in the same industry and though mine will be selling apparel, it will be doing much more than that as well. Could I run into a legal conflict registering and operating under my name?
Thank you for your question. Please permit me to assist you with your concerns.

If I may ask, are you in the same general geographic location? By that I mean will you be potentially competing against one another? I see that you are located in Utah, are they also in your state, or are they elsewhere?
Customer: replied 3 years ago.
She is located in Las Vegas

Thank you for your follow-up, Ken.

The reason I ask is depending on the copyright you obtain you may or may not be in potential risk. If you are competing against one another in the same market and there is a potential confusion between customers who mistakenly go to one of you rather than the other, then there is a risk of infringement. But if your names are XXXXX XXXXX but you do not compete against each other, then there is less of a claim of infringement against either party. For example, If there is a "Joe's Pizza" in New York and a "Joe's Pizza" in Boston, there is likely no real infringement because the parties are in separate markets and do not really compete against one another. But if you create a "Nike Creations" clothing line, then there is very likely infringement because the other name is XXXXX XXXXX and so well used in all of the markets. As a consequence if the other party has no large market share and does not compete where you compete, there is likely no issue.

Hope that helps.

Customer: replied 3 years ago.

We will be doing business in all states, all nations in fact.

Thank you for your follow-up.

If they are local then you may issues in their home market of Las Vegas. Otherwise if they themselves are national and international, there may also be a risk that they can claim that your name is XXXXX XXXXX to their name and consequently claim damages. It all depends on how widespread, well-known, or active they are in the business. Since their name is XXXXX XXXXX if they are likewise not very active you may, even as a latecomer, build up a better secondary meaning and goodwill to this name first and potentially later even compel them to change their name because then THEY would be infringing and not you. But if they already have an established market and compete against you, then it may be wiser for you to change your own name as you may be at risk of being pursued first.

Hope that helps and good luck to you!

Customer: replied 3 years ago.

If we are selling business first and on a larger scale will much like Nike will that give us seniority use? Likely giving us more legal rights?


 


Does it make any difference that we are registered vs. her just being trademarked?


 


Does it make a difference that ours is pronounced as it's spelled, as apposed to her two words?

Thank you for your follow-up, Ken.

If we are selling business first and on a larger scale will much like Nike will that give us seniority use? Likely giving us more legal rights?

Only if you end up getting there. It is not seniority exactly, is greater good will and greater secondary meaning and use of the brand name.


 


Does it make any difference that we are registered vs. her just being trademarked?

Not really, not in terms of secondary meaning rights. They are still there first.


 


Does it make a difference that ours is pronounced as it's spelled, as apposed to her two words?

Absolutely not. It is still substantially similar. If someone opens a "Bestbuy" electronics, the fact it is one name will not make it be any less of an infringement against "Best Buy".

 

Good luck.

Customer: replied 3 years ago.

Sorry, just want to be very clear... So as long as we are the first to be doing business, then we should be fine? Then we'd be able to come after their business instead?


 


We'd be the Seniority User?

Ken,

So long as you are the first to actively utilize your name and build a reputation for that name, you obtain greater rights. After a certain point if they are not using their business to the same capacity as you are, you may be able to attempt to pursue them for infringement. They may still be a seniority holder but you may, at that point, have greater rights to the name than they do.

Good luck.

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