Legal Question in Intellectual Property in New York

Re: trademark use

First, you would actually need a trademark, not a copyright. When it comes to copyright, I tell most clients that they can go to the government's copyright website and register their work themselves as it is pretty straight forward. (Copyright is used for works that can be "set", for example, a periodical, sculpture, movie, telecast of a sporting event, etc.)

However, when it comes to trademarks and patents, I always tell them to use an attorney. Before applying for a trademark, there must be certain due diligence to insure that your mark is not infringing on another. There are several factors to be considered: area of commerce, similarity of goods, similarity of marks, zone of expansion.

So, without performing a search myself, based solely on your findings, you may be able to use and register the mark. However, I strongly advise that you see an attorney before you apply for the registration.

Good luck.

Re: trademark use

Sarah is right. Therefore I don't know what you mean when you say it is already copyrighted, you must mean already registered as a trademark?.

If so the answer to your question is it depends how "different" the use is, and who the user is. A mark for cosmetics used for clothes might nevertheless be infringing, but a mark for a drink might not be infringed by use on toothpaste. Nevertheless even if there is arguably no infringement, you have to think about who the parties are. For instance, you might want to use a very famous mark from a big company for a completely different product which is not infringing, and you still would be sued. If it is a tiny company you could do it and not worry. In both cases you might be legally permitted to use the mark, but only in one case would it make practical sense to do so.

There is alot to think about.

Re: trademark use

Sarah is right. Therefore I don't know what you mean when you say it is already copyrighted, you must mean already registered as a trademark?.

If so the answer to your question is it depends how "different" the use is, and who the user is. A mark for cosmetics used for clothes might nevertheless be infringing, but a mark for a drink might not be infringed by use on toothpaste. Nevertheless even if there is arguably no infringement, you have to think about who the parties are. For instance, you might want to use a very famous mark from a big company for a completely different product which is not infringing, and you still would be sued. If it is a tiny company you could do it and not worry. In both cases you might be legally permitted to use the mark, but only in one case would it make practical sense to do so.

There is alot to think about.