Use of ™ on a software name that is not trademarked? I'm making an app for Apple app store and the perfect name for my app is already &quot;used&quot; even though it's not on the app store (this is a thing with app store - when you create an app with a certain name, it cannot be used again, even if the app is not published or deleted). What I'm thinking to use now is the same name but with ™ appended at the end. Could there be any legal problems apart from somebody else trademarking the name? I've seen some people say it is legal to do so but I want a second opinion.
First, &quot;I've seen some people say it is legal to do so but I want a second opinion.&quot; This is not a legal opinion. This is only in response to the question &quot;Can you use (TM) on a product that is not Trademarked&quot;? Second, you did not specify a jurisdiction. Since you mentioned Apple, I will assume USA. tl/dr: Yes, you can used the TM mark and no, it is not fraudulent. In the USA, there are three &quot;trademark&quot; symbols, (R), (TM), and (SM). (R) - (Registered) The federal registration symbol. This may be used only once the mark is actually registered in the USPTO. It my not be used while the application is pending. (TM) - (Trademark) / (SM) - (Service Mark) - According to the United States Patent and Trademark Office: If you claim rights to use a mark, you may use the &quot;TM&quot; (trademark) or &quot;SM&quot; (service mark) designation to alert the public to your claim of a &quot;common-law&quot; mark. No registration is necessary to use a &quot;TM&quot; or &quot;SM&quot; symbol and you may continue to use these symbols even if the USPTO refuses to register your mark. Those symbols put people on notice that you claim rights in the mark, although common law doesn't give you all the rights and benefits of federal registration.
In what way is the mark you made not your acceptance of the contract? It doesn’t matter if it’s your name, or someone else’s name, or an X or the Bluetooth logo or a caricature of Donald Trump. You made it - it’s your signature.
Generally speaking pop-culture references, like literary references, are neither trademark infringement nor copyright infringement. Trademarks Often a referenced item is in fact not a trademark. Most character names, for example, are not protectable as trademarks, because they are not used to identify the product or service, nor to advertise the product or service for sale. Similarly many pop-culture references which are associated with various groups, events, or products are not being used to identify or promote those things, and so are not protectable as trademarks. Even when a reference is (or includes) a trademarked phrase, it is unlikely to be trademark infringement. As long as the user of the trademarked term or phrase is not using it so as to identify the product or service where it is used, is not using it to advertise or promote that product or service, is not using it in such a way as to cause confusion by reasonable people on what the source of the product or service is, and is not using it so as to falsely state or imply that the product ore service is endorsed, sponsore, or approved by the owner of the trademark, then the use is not in fringement. One may use a trademark to identify a related product or service, to indicate compatibility, or to make comparative claims, and that is nominative use (using the mark as the name of the thing marked). Nominative use is specifically not infringement. Copyright Names, taglines, titles, mottos, and other short phrases are not protected by copyright at all. See the US Copyright office Circular 33 -- Works Not Protected by Copyright, where it is stated: Words and short phrases, such as names, titles, and slogans, are uncopyrightable because they contain an insufficient amount of authorship. The Office will not register individual words or brief combinations of words, even if the word or short phrase is novel, , distinctive, or lends itself to a play on words. This circulart includes as exMPLES: The name of a character Catchwords or catchphrases Mottos, slogans, or other short expression As I wrote in https://writing.stackexchange.com/questions/60965/what-are-the-fair-use-rules-in-the-usa-for-short-quotes-from-books-or-song-lyric Literary references, including short quotes, to other works of fiction are commonly allowed as fair use. They are usually appropriately attributed. There are several reasons for this. Such references normally do not serve as a replacement for the original. They normally do not harm the market, actual or potential for the original. And they are often transformative, that is, they re-user has a different purpose and achieves a different effect from the original. All of these factors are important in fair-use decisions, and all lean toward fair use for literary or pop-culture references. In fact, there are few cases to cite on such references, because it is so widely accepted that they would be fair uses that no on ever sues over them.
Yes, they can be. In the example given in the question, there is an additional factor which is that the possibly-infringing company is in a different line of business, which means that it might be possible to use the exact same name without infringing trademark. For example, there are Dove soap and Dove chocolate. (This possibility is probably more remote with a distinctive, novel name such as YouTube.) Trademark protection is supposed to prevent others from confusing consumers. For example, if the graphic design or other branding of the hypothetical youtub were sufficiently similar to that of YouTube that consumers might actually think that YouTube had branched out into the plumbing fixtures industry, then a court would likely find trademark infringement. (Such elements are often protected trademarks in their own right, of course, independent of the world mark; for example, UPS has trademarked "the color brown" in connection with package delivery services.) If a company started using the youtub brand to host and serve digitized video recordings, a finding of infringement is more likely still, even in the absence of other similarities. This would be especially true if it appeared that the name had been chosen explicitly to draw customers from the YouTube site, and that would probably be fairly easy to demonstrate in court.
This is known as nominative fair use. The leading case in the US is New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302, 306 (9th Cir. 1992). The International Trademark Association (ITA) summarizes: Nominative fair use generally is permissible as long as (1) the product or service in question is not readily identifiable without use of the trademark, (2) only so much of the mark is used as is reasonably necessary to identify the product or service and (3) use of the mark does not suggest sponsorship or endorsement by the trademark owner. The ITA uses iPhone cases as an example of allowable nominative use: Use of “iPhone” in non-stylized form on packaging for phone cases to indicate that it is usable with iPhone 6. Here is an example of that by J.Crew.
The relevant law is trademark law. The basic question is whether the mark is identical or creates an unreasonable risk of confusion with the protected mark. There is no per se 30%-40% rule. I can imagine cases where changing a single letter in a long phrase turns a trademark violation into a parody or clearly different mark (see the Electric Company TV show). I can also imagine cases where changing a large part of the mark could still be infringing and confusingly similar. A parody is protected on fair use grounds in copyright law (which could conceivably come into play since this is a derivative work but would be protected since it is a parody), but in trademark law the issue is that a parody is unlikely to be confused for the original. Of course, at a fine grained level when one is looking at particular cases rather than general ideas, you would have to know which country's laws were involved, for example, where the goods would be sold.
It is not clear to me how you &quot;use&quot; a mythological entity, and I take no position as to the divine consequences of any unauthorized uses, but you are entitled to incorporate then in your own intellectual creations for two reasons. First, any imaginable copyright on original texts (e.g. the Bhagavad Gita) has long since expired. Not all texts are of such certifiably ancient provenance, so there may be contemporary texts created by a practitioner of Ásatrúarfélagið which is protected. Second, names (Amitāyus, Zaraθuštra, Ngai) are not protected by copyright, so you can use names.
Your question lacks some details. So you registered a domain name, and later find someone else used that domain name (in the past) for a hobby website? Then no, you don't need to worry about it. If that person has a current trademark on the name used in the domain name, and your website provides/sells products or services in the same area, then you could have a problem. But that doesn't sound like it's the issue.