Can I trademark a symbol that is similar to the red, white and blue MLB and NBA logos? Meaning "Major League X", something that has not been taken or currently being used but is also associated sports/fitness?
~ New Haven, Connecticut
When you ask the question, this way, it begs for a "NO" answer. You say that the trademarks are similar. You say that they are both used for related sports. So, it sure seems like confusion is likely.
However, the problem is that these are questions of fact. Whether or not your symbol is similar to the MLB or NBA trademark can only be answered by an examination of the precise mark. A question like this is a matter of professional judgment, even for an experienced trademark attorney.
Trademark Likelihood of Confusion
A trademark attorney considers many factors to determine if a trademark is "clear" or "available" to use. These factors include the following list of factors, which tend to prove or disprove that two trademarks are confusingly similar:
- How similar are the impressions made by the trademarks on consumers? Sounds, appearances, and meanings.
- What kind and relationship is there between the commercial activity, the goods sold, or the services offered with the trademark?
- How does the commercial activity happen through the trade channels, that is, how things are sold?
- What conditions are goods or services purchased under?
- How famous are the trademarks?
- How many other and how similar are other trademarks that are in use?
- Do consumers actually get confused?
- How long have both trademarks have been used at the same time?
- What variety of goods are used with the trademarks?
- What is the relationship in the market between the trademark owners?
- How effectively has the trademark owner to excluded others from the use of its mark?
- What is the potential or likelihood of confusion between the trademarks
- What other facts that show the effect of use of the trademarks?
For more on how these trademark confusingly similar factors apply in a trademark analysis, see In Re Application of E.I. DuPONT DeNEMOURS & Co..
From, this list, you can see that this is a lot to think about. Clearly, the MLB and NBA marks are very famous, and, are used on a wide variety of goods. On the other hand, the marks have elements in common. Whether there is room for another mark, for another sport or fitness, is a good question for a trademark attorney.