Intellectual Property Law

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I created a logo for my company which involved a bike wheel.

Customer Question
I was recently informed it...
I created a logo for my company which involved a bike wheel. I was recently informed it looks similar to a different, much larger companies logo which also includes a bike wheel. How do I know if they are too similar?
Submitted: 3 months ago.Category: Intellectual Property Law
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Customer reply replied 3 months ago
I have uploaded 2 versions of my logo and the logo in question. Seems like Soul Cycle has a yellow wheel trademarked but what does that mean? I hired a graphic designer to design my logo. Thanks!
Answered in 1 hour by:
3/21/2018
IP Lawyer: Bill Attorney, Lawyer replied 3 months ago
Bill Attorney
Category: Intellectual Property Law
Satisfied Customers: 2,613
Experience: Attorney
Verified

Dear Customer ,

Thank You for posting your trademark registration question this evening. I'm attorney Bill answering your question. The code of federal regulations doesn't allow registration of a conflicting mark to a prior registration that is likely to confuse the source of the goods with another registrant or application.

The examining attorney refuses application under section 2d. likelihood of confusion.

You could either change your design or appeal a section 2d refusal.

The procedure in determining likelihood of confusion is set out in the trademark manual of examining procedure:

"

In the ex parte examination of a trademark application, a refusal under §2(d) is normally based on the examining attorney’s conclusion that the applicant’s mark, as used on or in connection with the specified goods or services, so resembles a registered mark as to be likely to cause confusion. See TMEP §1207.02 concerning application of the §2(d) provision relating to marks that so resemble another mark as to be likely to deceive, and TMEP §1207.03 concerning §2(d) refusals based on unregistered marks (which generally are not issued in ex parte examination).

The issue is not whether the respective marks themselves, or the goods or services offered under the marks, are likely to be confused but, rather, whether there is a likelihood of confusion as to the source or sponsorship of the goods or services because of the marks used thereon. See, e.g., Paula Payne Prods. Co. v. Johnson’s Publ’g Co., 473 F.2d 901, 902, 177 USPQ 76, 77 (C.C.P.A. 1973) ("[T]he question is not whether people will confuse the marks, but rather whether the marks will confuse people into believing that the goods they identify emanate from the same source."); In re Majestic Distilling Co., 315 F.3d 1311, 1316, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003) ("[T]he . . . mistaken belief that [a good] is manufactured or sponsored by the same entity [as another good] . . . is precisely the mistake that §2(d) of the Lanham Act seeks to prevent."); In re Shell Oil Co., 992 F.2d 1204, 1207, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993) ("The degree of ‘relatedness’ must be viewed in the context of all the factors, in determining whether the services are sufficiently related that a reasonable consumer would be confused as to source or sponsorship."); In re Binion, 93 USPQ2d 1531, 1534, 1535 (TTAB 2009); In re Ass’n of the U.S. Army, 85 USPQ2d 1264, 1267-68, 1270 (TTAB 2007) ; Hilson Research Inc. v. Soc’y for Human Res. Mgmt., 27 USPQ2d 1423, 1429 (TTAB 1993) ("Although confusion, mistake or deception about source or origin is the usual issue posed under Section 2(d), any confusion made likely by a junior user’s mark is cause for refusal; likelihood of confusion encompasses confusion of sponsorship, affiliation or connection.")."

I can make an offer to review your uploaded documents, this is additional tot he question and answer service so you would need to accept my offer to enable the review.

We are here to help so please follow up with me as required.

In return your positive rating is what gives me a credit for my time.

By rating 5*****, 4**** or better

FIVE STARS or your rating is much appreciated.

Best

Attorney Bill

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Customer reply replied 3 months ago
Hi Bill,I don't want to apply for a trademark, I am just asking if the logos are too similar. I uploaded the images. Is that something you can answer? Thanks for your help!
IP Lawyer: Bill Attorney, Lawyer replied 3 months ago

Yes the review of your logos is an additional service to the question and answer service.

I can make another offer to review your images; Ultimately it is the the trademark examiner that makes the decision under section 2d likelihood of confusion; you can submit your logos as is and if refused you will be able to amend your application until it fits.

I see you have yet to leave positive feedback, a positive rating give me a credit for my time.

You do this by rating 5*****, 4**** or better.

FIVE STARS or your rating is much appreciated in this regard.

Best

Attorney Bil

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