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Trademark infringement question

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Old August 6th, 2017 Aug 6, 2017 11:57:51 AM -   #1 (permalink)
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Default Trademark infringement question

Hey guys,

I'm selling a t shirt on Amazon Merch that has a design with a gorilla with a controller in hand with the words "Never Quit Gaming" and recently they disabled my design because someone filed a trademark infringement complaint.

I've contacted this guy and he said that he has a trademark for the words "NEVER QUIT" which I've checked and is true but my question is can he make complaints on anyone that is using these words?

Cheers!
Chris
 
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Old August 6th, 2017 Aug 6, 2017 12:02:11 PM -   #2 (permalink)
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Default Re: Trademark infringement question

Chris. Probably best to check with an IP attorney for accurate information.
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Old August 6th, 2017 Aug 6, 2017 12:23:14 PM -   #3 (permalink)
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Default Re: Trademark infringement question

If he owns the trademark, then obviously, he can make the complaint and get your design removed. If you want to continue to sell the design, you can take the legal action to get your design back on the site. In court, it would be up to a judge to decide whether your use of the mark infringes on the trademark. If you are looking for advice, contact an IP attorney.
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Old August 6th, 2017 Aug 6, 2017 12:50:06 PM -   #4 (permalink)
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Default Re: Trademark infringement question

and you have to decide how much money you are making off that design or expect to make off that design. There would be no sense in spending big $$$ to fight something that is generating $.

Sometimes, even if you're right, it doesn't make sense to pursue because of the dollars involved in the legal fight.
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Old August 6th, 2017 Aug 6, 2017 2:44:38 PM -   #5 (permalink)
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Default Re: Trademark infringement question

What use does this person make of his trademark?

I see the Never Quit Foundation, and a juice and energy drink company. If your business use is clearly in a different category, and your art/logo of the text is not similar at all, he should not be concerned--and in fact you could apply and get the trademarked registered yourself, IF you are in fact in a different business category. Except you don't want a trademark, since for you it is just text on a funny T-shirt, not your company's slogan or brand name.

That said, Never Quit is a weak phrase to trademark, being just two commonly used words used in a common way and being correctly spelled. Even within a specific category of business, this would be a weak claim to uphold in court.

Has this person offered to let you use it for a $$$$ consideration? There are some trademark sitters/trolls out there. Else, I suppose they are legit and just doing their best to maintain their TM rights, as they mean nothing if you do not enforce them.

ALL THAT SAID, Amazon does not want to be in the middle of any such dispute, so short of validation from a court or permission from the TM holder, you are SOL with them. The TM holder in effect "wins" against most people who are on Amazon, Etsy, eBay, etc simply because typical people cannot afford to go to court over a design. If you were selling on your own URL, the TM holder would have to spend actual money and go to court to stop you ... as opposed to the low/no cost of getting a design taken down on Amazon etc. Of course, you sell on Amazon because you sell a lot more there than you would on your own site.

Sorry, not really going anywhere with all that blather ...
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Old August 6th, 2017 Aug 6, 2017 2:50:51 PM -   #6 (permalink)
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Default Re: Trademark infringement question

To expound just a little on this below.

"Never Quit" or any small word phrase or tagline "might" be a weak trademark to defend. But if "Never Quit" was the name of this guys brand of t-shirts and sportswear, then that trademark would be much stronger. If he did tons of advertising and that name was becoming popular, the trademark would be stronger yet. Once a trademark is established, it can be challenged and one must defend their trademark or it weakens again.

The most often used answer you will get from an IP attorney when you ask them "blah blah blah trademark blah blah blah?" is "It depends."

Quote:
Originally Posted by NoXid
What use does this person make of his trademark?

I see the Never Quit Foundation, and a juice and energy drink company. If your business use is clearly in a different category, and your art/logo of the text is not similar at all, he should not be concerned--and in fact you could apply and get the trademarked registered yourself, IF you are in fact in a different business category. Except you don't want a trademark, since for you it is just text on a funny T-shirt, not your company's slogan or brand name.

That said, Never Quit is a weak phrase to trademark, being just two commonly used words used in a common way and being correctly spelled. Even within a specific category of business, this would be a weak claim to uphold in court.

Has this person offered to let you use it for a $$$$ consideration? There are some trademark sitters/trolls out there. Else, I suppose they are legit and just doing their best to maintain their TM rights, as they mean nothing if you do not enforce them.

ALL THAT SAID, Amazon does not want to be in the middle of any such dispute, so short of validation from a court or permission from the TM holder, you are SOL with them. The TM holder in effect "wins" against most people who are on Amazon, Etsy, eBay, etc simply because typical people cannot afford to go to court over a design. If you were selling on your own URL, the TM holder would have to spend actual money and go to court to stop you ... as opposed to the low/no cost of getting a design taken down on Amazon etc. Of course, you sell on Amazon because you sell a lot more there than you would on your own site.

Sorry, not really going anywhere with all that blather ...
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Old August 6th, 2017 Aug 6, 2017 5:55:23 PM -   #7 (permalink)
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Default Re: Trademark infringement question

A trademark does not mean, however, that no one else can use your word, phrase, or symbol in connection with any and all goods and services. It means only that somebody else can't use a similar trademark with similar goods or services. The key criterion: trademark infringement occurs when someone else's use of a trademark would likely cause confusion about the source of goods or services. Avon, for example, has trademarked "Let's talk" for a variety of commercial uses, including door-to-door retail merchandising. But that hasn't stopped another company from trademarking "Let's talk" for use with voice-activated computer software, because consumers are unlikely to get confused and believe that Avon is pitching software, or that a software company is hawking lipsticks.

Can you trademark the phrase "Let's roll"?


Check his t-shirts, trade mark all words which you can on his t-shirts and take them down as a revenge
 
Old August 6th, 2017 Aug 6, 2017 6:24:03 PM -   #8 (permalink)
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Default Re: Trademark infringement question

lol funny reading

https://www.wired.com/2014/05/pi-takedown/
 
Old August 6th, 2017 Aug 6, 2017 7:12:47 PM -   #9 (permalink)
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Default Re: Trademark infringement question

Quote:
Originally Posted by seacookie
Check his t-shirts, trade mark all words which you can on his t-shirts and take them down as a revenge
I know you're being funny, but for context for others, you do realize that it costs money to register a trademark and it's a process, right?

Expensive trolling.
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Old August 10th, 2017 Aug 10, 2017 2:11:53 PM -   #10 (permalink)
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Default Re: Trademark infringement question

Thank you all for your answers. I'll just let it go and just change the wording on my shirt. It wasn't generating any serious income anyway.
 






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