QUESTION
Does my proposed new business name infringe on another companies product name?
Asked on Jul 09th, 2012 on Intellectual Property - California
More details to this question:
We are looking to name our new soda/beverage business Local Liquid but there is a company called Life Juice that has a product called Local Liquid.
The idea behind our soda/beverage business is to use all natural, primarily locally grown fruits from the regions farmers to develop our sodas, teas, etc. We would like to take the business "national" but in each city/state the fruits would be grown locally and therefore the beverages would still be local.
I noticed this beverage when I did a Google search and it says:
"Current local Liquid: Wheatgrass Honey Lemonade!
16 oz of a seasonal blend of our locally grown veggies and herbs with apples from our neighborhood orchards!"
http://www.shop.lifejuiceshop.com/Local-Liquid-Local-Liquid.htm
If we were to use the name Local Liquid, would we be infringing on their product name? Or is their product name simply descriptive?
1 ANSWER
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When you are the junior user of an unregistered mark, it is dangerous to assume that your use is non-infringing merely because the mark appears to you to be merely descriptive. Bear in mind that even merely descriptive marks may acquire secondary meaning. Moreover, it is possible that the mark is merely descriptive with respect to your goods but somehow stronger with respect to the goods of the senior user (as, for example, being unrelated to their geographic origin). These are inherently fact-based determinations and could cost you thousands of dollars (or hundreds of thousands of dollars) in litigation expenses just to prove you are right. Nearly every attorney in these circumstances would advise you that it is inexpensive and relatively easy to pick a new name now, before you have spent any money on advertising -- or litigation. You may be absolutely right, but the cost-benefit relationship is wrong.
Answered on Jul 09th, 2012 at 4:27 PM