Legal Question in Intellectual Property in California
Infringment?: Trademarks beginning with the same first word, but having a secon
My question refers to trademarks that have the same first word in the title, but the second word is different. For example, say there were hypothetical products ''Drink Up'' and ''Drink Rum'' that are two alcoholic drinks in the same industry, sold on the same shelves, by two different companies and each of their names are trademarked. The packaging of the products is differentiated enough due to the colors and shapes of the bottles so that you can tell that they could be different. ''Drink Rum'' owns the trademark to the word ''Drink'' but ''Drink Up'' has said that NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE ''''Drink'' APART FROM THE MARK AS SHOWN. Nobody has heard of ''Drink Up'' but everybody knows ''Drink Rum''. Why does ''Drink Rum'' not sue ''Drink Up'' for trademark infringment if the word ''Drink'' might confuse a consumer? This is my situation except that it applies to the cosmetic industry. Do the same rules apply to the cosmetic industry? Can ''Drink Up'' be sued for trademark infringment?
2 Answers from Attorneys
Re: Infringment?: Trademarks beginning with the same first word, but having a s
No there is no specific rule regarding cosmetic industry. Drink is a generic and descriptive word. The facts of the case, who used first..along with the proof of actual consumer confusion will be required to prove any infringement.
Re: Infringment?: Trademarks beginning with the same first word, but having a s
Aside from the fact that a word like "drink," alone, is generic or at least primarily descriptive, and thus not subject to trademark protection, your dispute would likely come down to an analysis of discrete facts and who was the first user and where.
No, there are no special rules for the cosmetic industry.
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