Legal Question in Intellectual Property in California

Re: Trademarking

What you describe probably isn't trademark infringement, even though both are footwear. The only way to really know, however, is for you to file an application with the trademark office and see if anyone comes forward to challenge it.

Re: Trademarking

The most important thing to keep in mind about trademarking is that it's all about "confusion of source". If your mark might confuse someone so that they think the item was made by someone else, that would definitely be trademark infringement. On the other hand, you can have the same words used as a trademark by two companies if they are associated with goods from different classes. By way of example, if brand "XYZ" was associated in one case with clothing and also with furniture, there would be little chance of confusion. This is why trademarks and service marks are registered by class. Another concept to consider is mark strength. That is a little bit similar to choosing a password for your bank account. The more common the words, the less "strength" your password will have against hackers. In the same way, those weird drug names are made up to be very unique because they provide strong trademarks that are easy to defend. If you have common words in your trademark/servicemark, you will be asked to disclaim each word in order to acknowledge that those words are commonly used. If we apply this to your question, you have to ask whether construction versus leisure footwear is sufficiently different. (Ultimately determined by the USPTO if you apply for a mark.) You have to ask whether your term is sufficiently unique and, even if you get a trademark, whether it is a good, strong name. You also have to consider whether someone else you haven't discovered has already "taken" that term. To do this, you need to search not only pending/granted marks, but also domains, internet, and state registries of business entity names. There are several services that can answer that question, but you can do a quick-n-dirty search through the USPTO's search engine.

Re: Trademarking

I agree with half of what Ms. Cowin contributed. You are walking on thin ice. I would defer from offering a definative opinion on this forum. Contact me directly.