Discussion:
What is the name of your state? missouri
Answer:
What is the name of your state? missouri
i am a personality researcher and run a website devoted to personality tests and theories. all the tests and site content are free but i do have one small strip of google text ads at the top of site pages.
i have written a number of personality tests based on the ideas of carl jung and myers and briggs. myers-briggs test publishers are claiming trademark infringement and that i can't call my tests myers briggs jung tests (as it's too similar to myers-briggs). i also ask for people's mbti type to gather data. they object to me doing that as well.
their claim is that the average consumer will be confused into thinking my test is the actual myers briggs instrument or that there is some affiliation with the publishers of the myers briggs test and my website. i am not sure if they actually believe that or they just don't like free myers briggs-like tests in existence.
i also have a type descriptions section which is labelled myers briggs jung types.
so the question is since the tests and site content are free do they have any grounds to begin with?
**A: yes, they most certainly do.
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how many people need to be confused for them to have a case?
**A: one.
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i think most people know my site has no affiliation with myers-briggs.
**A: most people does not legally consitute all people.
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what changes can i make to protect myself while still conveying that these tests are similar to the theory behind the myers briggs tests. since i am a researcher, and the myer-briggs test is the most familiar personality test it's natural that i will want to research it, write about it, and offer similar tests.
**A: do not use their name.
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the strip of text ads matches the look of the site, and since their actual company shows up in the ads on occasion, they want me to change the ad format so it contrasts with the site. it says 'ads by google' at the bottom of ads so i think most people know they are ads. they also want me to move the ads to a different part of the page (but don't specify where). i think they are being idiotic. **A: on the conrtrary, you are being both idiotic and ignorant.
Answer:
anyway, i am just trying to delineate what the line is. Talk to a local attorney who is experienced in trademarks to work out what name you can use that is unlikely to trigger an infringement lawsuit. Any of the names suggested may be sufficiently "confusing" to cause the trademark owner to come after you...
Answer:
That's correct.
Answer:
so i am just interested in getting a sense of the general standard so if they do litigate, i feel i meet the general standard. There is no "general standard" in the sense that if you do this, you are okay, but if you do this you are not. Trademark infringement is very fact-specific -- a determination of the likelihood of infringement will depend on ALL of the relevant facts -- what their trademarks cover, what their websites and literature look like, what your website looks like, etc. -- trademark infringement is a "likelihood of confusion" test. If any potential consumer is likely to be "confused" as to whether they are viewing materials that came from the trademark holder or not, there is likely infringement.
As you can probably see, this "likelihood of confusion" is hard to determine -- that's why we let the courts do it -- they can review ALL of the facts and arguments on both sides, and make a determination.
We don't have all of the facts on either side -- that's why the only way you can really protect yourself is to go and see a local attorney who can review all of the facts and help make a determination. If you are unwilling or unable to talk with a local attorney, then you either have to risk potential litigation, or change your website in such a way that the trademark holder is satisfied.