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Thomas Swartz
Thomas Swartz, Lawyer
Category: Intellectual Property Law
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Experience:  Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.
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Are the names "Gamecrib" and "Gamer Crib TV" too similar to

Resolved Question:

Are the names "Gamecrib" and "Gamer Crib TV" too similar to trademark the latter if both are in the same industry? I'd like to operate an internet video network under the latter name, however there is a trademark for "Gamecrib", a web-series, owned by a company.
Submitted: 12 months ago.
Category: Intellectual Property Law
Expert:  Thomas Swartz replied 12 months ago.
Hello JACUSTOMER,

Yes, it is my opinion that they are too close. The test in determining whether or not trademark infringement is occurring is whether or not there would be a likelihood of consumer confusion as to the source of the goods or services represented by the trademarks. A big factor in this is whether or not the two companies are in the same business or selling the same categories of goods or services. You indicated that you are both in the same industry, so that is a clear negative against you. And since both trademarks use the words "Game" and "Crib", I believe there is a strong likelihood that consumers would be confused.

You can always try to trademark the name with the U.S. Patent & Trademark Office (before using "Gamer Crib TV) and see if they will allow it. But I doubt it. And if you begin using "Gamer Crib TV" without first obtaining a trademark, the other company will likely seek to stop you through an infringement action.

I would recommend finding another unique name.

Thomas
Customer: replied 12 months ago.

Thank you for the answer, very helpful. I actually have the same question regarding a second name then, the two are in unrelated industries, and the trademark is dead according to the USTPO. Would I be allowed to ask that, or do I need to purchase a second question?

Expert:  Thomas Swartz replied 12 months ago.
Go ahead and ask. But if a trademark is dead, then anyone can apply for that trademark.

Thomas
Customer: replied 12 months ago.

Thank you. There is a dead tradeXXXXX XXXXXsted in the USTPO called "DailyElixir", a natural health care product, the owner failed to renew the registration in 2009. I would like to use the name "The Daily Elixir" as my web video network name. My producer and I are in contact with the woman who owned the trademark and she still uses the name for her product, unregistered on a federal level. I don't believe she does much business as her product is a "snake oil" type remedy and her customer base is an extremely limited market. My question is, could I successfully use the name (Trademark, register DBA, etc.) "The Daily Elixir" without her consent, and if I do need consent, what type of consent do I need?

Expert:  Thomas Swartz replied 12 months ago.
I believe you could successfully use the name without much risk of an infringement claim. You are in such different businesses that there would be little likelihood of consumer confusion. Also if her product is not that successful, the trademark itself is not that strong or well recognized. But you should go ahead and apply for registration of your name "The Daily Elixir" for your video service.

Thomas
Thomas Swartz, Lawyer
Satisfied Customers: 2798
Experience: Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.
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