Discussion:
I hope this is the right section to post this question.
Here is the problem. I am starting a small local monthly newspaper in Michigan. I am confused as to what my boundaries are when it comes to naming the publication. Can I name it something that has been trademarked? For example, if I wanted to call it "My Cup of Tea" and that phrase has been trademarked am I infringing on their rights? What if i add "Michigans Cup of Tea", am I legally okay then?
Let me clarify that my LLC registered with the state IS NOT the name of the publication. My LLC has been registered and cleared so I know legally I am okay there. I guess I am just confused as to my boundaries. I know of several publications whos names are not trademarked by them personally. Although the names are trademarked by others.
Any information would be helpful. Thank you.
Answer:
Trademark infringement is generally a "likelihood of confusion" test -- basically, if the court feels that a consumer is likely to be confused as to the source or origin of a product, then there may be infringement.
For example, if I wanted to call it "My Cup of Tea" and that phrase has been trademarked am I infringing on their rights? It depends on how "My Cup of Tea" is trademarked and actually used in commerce. If the phrase is used in such a way that your use would not cause confusion, then you are probably okay -- you might get sued, of course, but you probably wouldn't be liable for infringement.
For example, if I trademark a red "dude" and use that logo on, say, t-shirts and apparel, then you want to use a red "dude" as your newspaper logo, then there would probably not be infringement, because a buyer of the newspaper is unlikely to be buying the paper because he or she believes it was actually published by my apparel company.
Now, certain marks are so famous -- Amazon, Nike, IBM, etc. -- that there is no way to use them without infringing. But relatively few marks have attained the "famous mark" status giving them enhanced protections.
So, it should be clear by now that whether or not you are likely to infringe on another's trademark is a very fact and situation-specific question. Your best bet is talk with a local attorney who is experienced in trademarks and who can review ALL of the facts in question and give an opinion.