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How must a logo differ from a competitor's stylized trademark?

When someone has a trademark filed for a "stylized" logo of an animal. Can I use that same animal as long as it looks more realistic?

I am wanting to use a woolly mammoth for a logo on leather goods and polo shirts. I see there is already a woolly mammoth trademarked for "Woolly Clothing Co." but it is a cartoon style drawing. They only sell underwear and socks. Would I be able to use a solid figure of a woolly mammoth (more realistic looking), or are all woolly mammoths clothing logos protected by that one trademark? Thank you.

~ Texas

It is possible that you could use the same animal, that is, another, different woolly mammoth. However, because the goods are nearly identical, your woolly mammoth will need to convey a different commercial impression through a different appearance and a different meaning. If the only difference is "realism", well, that may or may not be enough of a difference.

Your woolly mammoth could also differ in it's pose, demeanor, inflection, class, grandeur, clothing, attitude, proportions, gender, color (if that is part of your mark), or other perceptible aspects. Your different appearance should give rise to a different meaning, and, thereby, a different commercial impression. A potential customer viewing both would have a different impression from each.

Your goal is create a logo so different, that it would be highly unlikely that a potential customer who viewed both marks would assume that the good originated from the same source. Its worth keeping in mind, that potential customers may only remember a general impression of a trademark, and, not the specific details. So, the differences should be immediately apparent a just a single glance.

When you have such a different mark, I recommend that you have your mark cleared with a trademark attorney. The trademark attorney can write you an opinion that the two trademarks are unlikely to be confused. In the event of a later lawsuit, this opinion may prevent a finding of intentional or willful trademark infringement. Willful trademark infringement can be punishable by treble (times three) money damages. So, it makes sense to get some help from a trademark attorney before you begin using your new trademark.

Good luck!

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