Legal Question in Intellectual Property in New York
Hi I run a music blog and playlist curator service.
The name and website is registered under the name SchniTunes. Somebody told me that apple may be able to sue me because it is similar to itunes. Please let me know!
2 Answers from Attorneys
Famous marks enjoy greater protections. While I think the term "TUNES" is very saturated Apple may complain that using it attached to a prefix also ending in an "i" might lead to consumer confusion. For example, I don't care what you make, but if you seek to call it the "McWhatever" you can expect to hear from McDonald's lawyers. I'm not concluding that this is the case here, but it certainly could be and might not be worth investing in.
It is of course best practice to clear it before you start using any trademark and starting with a strong one is your best strategy. Know as well that merely registering your business name with a state or county agency or acquiring a domain does not convey any right to use that name in commerce as a source identifier or trademark. For example, I can presumably register my new tech start up "Boogle" with the NY secretary of state because there is no other business already doing business there under that name, but this does not mean that I would not be infringing on the Google trademark, which I would be. The onus is on you to ensure the name you choose is not a problem.
Your trademark will be one of if not the most important and valuable business assets you will have and you will ultimately spend more money in support if it than you will anywhere else (advertising, marketing, PR, branding, packaging, etc.).
Whenever you endeavor into investing in a trademark it is very important that you conduct the proper clearance due diligence. In the US, this means searching under both federal (USPTO) as well as common law because trademark rights stem from use in this country NOT registration. This means that acquiring a federal registration does not necessarily mean that you are not infringing on another's intellectual property.
I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
If you would like to discuss further over a free phone consult, feel free to contact me anytime that is convenient.
Our firm is now referred by the American Bar Association (see under the New York section):
In the US one can sue for almost any reason, so Apple could definitely sue you. It does not mean that they will be successful, but the cost of defending yourself could bankrupt you even if you are legally correct. One of the most cost effective and legally meaningful ways to protect your brand and yourself is by trademarking. The good news is that the process of trademarking is fairly straight forward and the further good news is that it is relatively inexpensive, especially in light of the benefits it presents!
Feel free to contact me directly for more info on trademarking.
Roman R. Fichman, Esq.
www.TheLegalists.com │ @TheLegalist
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You are in a private business (also considered a public place as per NY law... Asked 1/22/18, 11:51 am in United States New York Intellectual Property