Trademark Infringement: When it comes to "inspired" branding, how close is too close?
Updated: Aug 13, 2021
Is your brand inspired by another brand? It may be a tongue-in-cheek parody of the brand that everybody loves (or loves to hate), or maybe it's a tasteful homage to an awesome product from your teenage years, but when it comes to brand protection, there's a fine line between "inspired" and infringement. So how close can you fly to the original brand before you feel the heat of a pending lawsuit?
Well let's take the example of our KFC doppelganger here. There's a clear intention to copy from the original. Aside from sharing 2 out of the 3 letters with the original (i.e. KPC vs KFC), the font used is also similar to the original and the letters KPC are visually very similar to KFC. In fact, even the likeness of the good Colonel was almost faithfully reproduced (itself a potential copyright infringement issue). You can imagine it's not going to be easy telling the two of them apart, especially after a night-out (which incidentally is the perfect time for some finger lickin' good chicken)!
So the verdict? If the KPC mark is used in trade, it'll most definitely be considered trademark infringement.
In this battle of the alt-milk brands, there are clear similarities between the two trademarks as well as their packaging. However, in a recent court case, the judge found that even though there were similarities between trademarks of the two companies, the similarities were "at a very general level" and that the "similarity is due to the presence in both the sign and the mark of the letters ‘oat’ that are descriptive of the relevant products".
So the verdict? If you incorporate a descriptive or generic word in your trademark, it is more difficult for you to prevent another business from using a similar sounding trademark as that would give you an unfair monopoly over the descriptive/generic word.
Similar to the Oatly vs Pure Oaty case, here the marks are also very alike, with the word "Face" and Body" being the distinguishing factor. In fact, consumers might even think the two brands are related. However, the similarity of these two trademarks is due the fact that they share the words "the" and "shop", which are generic/descriptive and commonly use in trade (think The Chicken Rice Shop, The Ribbon Shop, The Custom Shop etc.).
The verdict? The more descriptive your trademark is, the harder it is for you to enforce your trademark rights and prevent another business from using trademark that's very similar to yours.
Is someone using a brand that is similar to yours? Are you planning to start a new gig but not sure if you're stepping on someone's toes with your new brand? Why not talk to us? We're here to help!