How close can names in the same classification not be in trademark law Say you have 'Bag Watcher' that sells business management software, and another company, with the same class, is called 'Bag Overwatch' that is a computer security company. Is it legal and enforceable to register 'Bag Watcher'? This is in the U.S.
The question is always, would a reasonable customer be confused into thinking that the two are the same, or that there is some relation or sponsorship or attribute to one product or firm the rightful reputation of another. That is always dependent on the specific facts and the specific market involved. So-called &quot;famous&quot; marks get extra protection. The exact markets involved will matter. Any stylizations such as colors and typefaces may matter. Logos may matter. I can't say if one of those specific names would be found to infringe on the other.
Even though student status is not on the list of protected classes, this still might be discrimination. By proxy. Status as student can be a proxy for age, race, and/or color. Maybe even religion if there is a religious school nearby! In fairness to the store manager, when a pack of ten kids comes rolling in on the way home from school things can get pretty hectic. Rather than try to kick out the problem kids many managers will attempt to avoid the problem in the first place. Also, a sign like this might help the manager be less discriminatory. For example, let's say he lets all kids in and only kicks out the ones who are causing problems. If those problem kids are all in one protected class and it's different from the kids who don't get kicked out, the manager looks like he's discriminating based on that protected class. Discrimination by proxy can be hard to prove and I am not sure of the burden of proof in Canada. I have read that "Canadian experience" is used as a proxy in employment discrimination and has been getting some attention lately. That might be a good issue to keep an eye on as it may define proxy discrimination jurisprudence.
First, copyright does not apply to "brands". Copyright exists in literary works which includes art - a picture (any picture) usually has a copyright belonging to the creator of the picture. Brands are protected by Trade Marks. To be clear: A picture of you is protected by copyright belonging to the creator The phrase "Mickey Mouse" is protected by trade mark belonging to the Disney corporation A picture of Micky Mouse is protected by copyright and trade mark. (when) would it be legally OK for me to do so without the copyright owner's permission? You can use copyright material without permission if you meet the fair use criteria in your jurisdiction. You can use trade marks if there is no risk of people confusing your goods and services with the trade mark holder's and you do not cause damage (including loss of potential income) to the trade mark holder or it is fair use (e.g. you are writing a review of a Micky Mouse cartoon). Is it legal if I do not distribute them to others at all? No, this would be OK as copyright fair use, but not as trade mark fair use. Is it legal if I give them to my family/relatives for free, e.g. as a gift? No, not fair use for either copyright or trade mark. Is it legal if I give them away to others for free (meaning I'm losing my own money on them)? No, see above. Is it legal if I sell them to others at-cost (i.e. for the same price I obtained them, meaning I'm not making any money from them)? No, see above. If the answer is "yes" to any of the above, can the copyright holder explicitly prohibit me from doing so, or would such a prohibition be unenforceable (e.g. if this would be fair use)? It isn't allowed. Yes they can stop you. No, it isn't fair use; there is no "fair use" defence for trade mark infringement here - you are depriving them of income because you are not buying their T-shirt! Any other factors that are relevant but which I'm forgetting? Will they sue you for doing these things? Probably not.
Yes. You can build your business with that. Yes. Also, a trademark is not a trade name and vice versa. This is a common mistake. A trademark is a brand affixed to some kind of product. A trade name is the name of a business. They are not the same things. The fact that you have a business with a particular trade name does not mean that you necessarily have a trademark in that name. You do not necessarily need to have a trademark in your trade name and often you can't because it is not a branding of your product. Probably not. Certainly, you cannot get a principle register trademark for this. You could file a state trademark registration if you sell it in a U.S. second or perhaps a supplemental trademark registration, which don't necessarily give you legal rights, but do conclusively establish that you were using the mark in a particular place from a particular time which would discourage anyone else from trying to get a trademark of their own and oust you from using yours. Sometimes trademark examiners are lazy and let generic marks get registered even though they shouldn't. Hard to say. They shouldn't be able to get a trademark in the U.S. on that basis, but the quality of trademark examination varies from country to country, and from examiner to examiner. Every once in a while I see an approved registration for a mark that should totally be disqualified and I shrug my shoulders and ask myself why I always clear a clear &quot;no&quot; from the PTO when I try to submit a mark like that and somehow the bozo who submitted that mark got it approved when it should be clearly ineligible for registration - for example, &quot;Palisade Red&quot; for red wine made in Palisade, Colorado. A lesser level of trademark registration such as a state trademark or a supplemental register mark discourages an otherwise lenient examiner from approving an already dubious mark and strengthen your case if you ever need to seek to have their mark cancelled.
I think you will find that &quot;sign&quot; here means &quot;mark&quot; and includes a word, a phrase, or a logo, or a combination of any of these. Indeed section 6 of the act defines this: &quot;sign&quot; includes the following or any combination of the following, namely, any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent. The main test is whether the two marks are &quot;confusingly similar&quot; or whether prospective customers are likely to be confused into thinking that one seller is actually the other, or into attributing to one the goodwill or reputation of the other. (This standard is much the same under US law or the laws of a good many other countries.) This is a very fact-intensive determination, and is to some extent a judgement call. But a difference in one letter only, with little or no difference in sound, might well be sufficiently similar to cause confusion. Note that section 10 of the law defines this: For the purposes of this Act, a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion, and thus this might well be a case of infringement. Note that for infringement to be found, in addition to the marks being &quot;deceptively similar&quot;, the goods or services must also be similar or in the same category, (or goods &quot;closely related&quot; to protected services or vice versa) unless the mark being infringed on is &quot;well known&quot;.
Given the following: We know the name of the plaintiff, The name is likely to be unique so that there won't be too many cases involving a different party with the same name, and The plaintiff is a company so it is not likely to have been involved in an overwhelming number of cases (as opposed to e.g. the IRS); The approach I would use would be to search a legal case database such as Westlaw for all cases where Hamilton Watch Company is a party, and review the abstract for each case that I find. In this case we also have a relatively rare keyword, &quot;pulsar&quot; so we can narrow down the results by putting that in the search as well. However there are several caveats: You will only find cases which went far enough that the court made a decision. Your quote says &quot;I'm told that in the United States the watch company tried suing the radio astronomers for use of the name&quot;. That sounds like pretty unreliable third hand information. It's quite possible that they merely sent a cease and desist letter and that got reinterpreted as &quot;tried suing&quot; by the time it was said by Jocelyn Bell Burnell. Even if they did sue, the majority of cases are settled out of court without ever seeing trial, which means you are unlikely to find any formal record of it and your best hope may be media articles if it was high profile enough. Large companies often have complex corporate structures involving parents and subsidiaries so the suing party's name may not actually be what you think it is. That certainly seems to be the case here, so you may have to start searching for other company names within the group. Not all cases are reported in which case you are less likely to find them. My jurisdiction is england-and-wales but I surprised myself by discovering that my Westlaw access allows me to login to the US version as well. I found no relevant cases for any of the following searches (based on various companies that have been part of the same group as Hamilton Watch Co over the years): &quot;hamilton&quot; in the party name and &quot;pulsar&quot; in the text. &quot;buren&quot; in the party name and &quot;pulsar&quot; in the text. &quot;swatch&quot; in the party name and &quot;pulsar&quot; in the text. &quot;SSIH&quot; in the party name and &quot;pulsar&quot; in the text. &quot;HMW&quot; in the party name and &quot;pulsar&quot; in the text. The only vaguely related thing I found was when I searched for &quot;watch&quot; as the party name and found this case involving a &quot;pulsar&quot; trademark for watches owned by Seiko Kabushiki Kaisha. It has nothing to do with the purported facts in your question though.
In the Netherlands, this qualifies as a deceptive trade practice (misleidende handelspraktijk) and is therefore directly illegal. It's likely also an unfair trade practice, (oneerlijke handelspraktijk) as the claim appears intended for end consumers. This means that the seller cannot count on the consumer knowing anythong about stuffase. It is a dutch implementation of EU directive 2005/29/EG, so similar laws apply in other EU countries. But the illegal per se part might vary.
How close is such a statement corresponding with the reality? Legally, such language is a meaningless statement of future intent that at best makes clear that the person making the statement isn't waiving any of their legal rights. Certainly, no infringer would have standing to sue if they failed to do so. Whether a joint venture member or foreign reseller could sue the company for failing to enforce its IP rights is another question that presents itself very differently and depends upon much more than what the warning labels state, such as the language in the joint partnership or reseller's agreement with the copyright owner. Also, in criminal copyright violation cases, even if the copyright owner asks for the maximum possible consequences, the U.S. Justice Department is under no obligation whatsoever to go along with that request. Likewise, a judge has no obligation to impose the maximum penalty allowed by law following a criminal conviction, even if the copyright owner and the U.S. Justice Department both request a maximum sentence for someone who pleas guilty or is convicted of the offense following a trial. In practice, something like 98% of federal criminal cases, and a similar percentage of federal civil cases, result in agreed resolutions which result in less severe penalties than the maximum penalties allowed by law. This happens as a result of a mutual agreement to resolve the case with a guilty plea, or a settlement agreement in a civil case, or both. Also, in practice, none of these companies, nor the federal government's prosecutors, have the resources to press anything but the most clear and serious copyright violation cases, and cases that are valuable for P.R. purposes. Anything else is essentially a random lottery from myriad cases that could have been brought in order to counteract the argument (both political and legal) that their copyright protections are empty and completely unenforced is a large part of the cases to which the statutes would make it seem that they apply. Also, in a case brought by a joint venture owner or reseller for failure to enforce a copyright which causes the partner damages, presumably in some sort of breach of contract or breach of fiduciary duty action, there would be no way to prove damages from all of the non-enforcement, since enforcing every known infringement would not be cost effective and would reduce the net profits of everyone involved.