brand name COPYRIGHT help please!

[titzup]

I am currently 'rebranding' and want to use specific wording, but there is already a company with copyright on this wording, although we sell two different products.

They are called for example

"Really Fast Horses"

and I want to be

"Really Fast Cars"

is the addition of my totally separate word/product enough to differentiate us? The words involved are common everyday words, not a name unique to them.

Hiya titzup, there are a couple of things you have to consider; what does the other company have copyrighted? If the logo/font/colouring and wording are too close, they could challenge.

If it's merely a wording thing, I'm almost certain you'll be just fine (think about the overuse of the 'R Us' suffix).

A company was challenged in recent years because, although the name of their company was different, the font and colouring (along with the word shape) was designed to emulate this luxury brand. Naturally, Harrods challenged this relatively minor business upon their choices, claiming a breach of copyright.

As an aside, I have an independent supermarket in my town called Safeburys...they have never been challenged to my knowledge.

Interesting thankyou, I thought that would be the case so I've made sure my logo's nothing like!

You're very welcome and good luck with the re-brand!

This is not a copyright issue, it's a trade mark/passing off issue.

Registered trade marks give the owner an exclusive right to use the mark in relation to the goods/services for which it is registered. However, depending on the context, use of the same or a similar mark in relatio to different goods/services could still anount to an infringement of the registered trade mark.

Unregistered marks are protected by the common law of passing off (rather than protected by statute). This means that even if another trader with a similar trading name has not registered the name, they could still have rights entitling them to prevent you from using a similar name.

What constitutes infringement depends very much on the facts of each case and it's impossible to tell from your OP whether you might be in danger of infringing the earlier trader's mark. Is their mark registered? Is it for the same or similar goods and services as those you are offering? Is the mark particularly unusual for the goods/services? The more descriptive a mark (e.g. "Manchester Taxis" for a Manchester taxi service) the less likely you are to be able to prevent others from using the mark.

You can find a lot of useful information on the Intellectual Property Office's website. However, if you are starting out, it is always better to avoid choosing a mark similar to one you already know is being used for the same or similar goods/services. The more unusual you can make your own mark, the better.

And always register your mark (both device (logo) and words - separately) if you can afford to. Saves a lot of bother later.

Mendi's right, you can't copyright a name as there's no skill or expertise in its creation. It needs to be registered as a trade mark.

Yup, as Mendi says (I think I delivered the same message without the 'legaleese').

I don't think distinguishing between copyright and trade marks/passing off is "legalese" - they are completely different legal rights.

They have the little R in a circle next to their name, but I can't work out if that applies to the Really Fast part of their name or the whole "Really Fast Horses". They tend to interchageably use just Really Fast or Really Fast Horses to identify themselves so i can't tell what's what.

My analogy is good in that we both sell transport, but one is horses and one is cars, so very different types of transport, but both still really fast

The little R in a circle may only be used when a trade mark is registered. However, you should still check on the IPO website to see if it is registered. It's easy to do. Just go to the website, go to "find trade marks" and then you can search either against "really fast cars" or against the name of the owner of the mark.

If the mark actually is "really fast cars" (or horses, I forget which way round it is), then the mark will be a logo mark not a word mark, as it is not possible to register such descriptive words for really fast cars (or horses). This means that the part of the mark you would have to work about not emulating is the logo element (lettering, any graphics, etc) rather than the actual "really fast.." words. No trader can claim an exclusive right in descriptive words.

HTH

P.S. they may have more than one registered trade mark to take account of different ways they use the mark ("really fast" or "really fast horses"). Best way to check is first search the IPO site for "really fast horses" and note the name of the owner of that mark, then do a "search proprietor" search against the name of that owner, which should yield their other marks (if they have any)

thanks very much, I'll do that! Hoping it's the logo, as we really are different there.

interesting - there's quite a few registered 'Really Fast' so I guess it's not as critical as I thought?

No, you need to look at the goods/services the marks are registered for. The more similar the goods/services and the more similar the mark, the greater the likelihood of infringement.

In the case of something that can move, the words "really fast" will be entirely descriptive and non-distinctive and will therefore not really "count" in an assessment of whether another "really fast" mark infringes. However, this is all highly dependent on a number of variable facts in each case and if you are concerned you should take advice from an IP lawyer.

hmmm. OK I may need to consult a lawyer to look at it properly, but personally I think I'm OK as this is a phrase in common usage and although this brand is the market leader for their product, my logo is very different and it is a completely different product albeit in the same 'sphere' e.g: jeans and jumpers - both clothes, but you wouldn't NOT buy jeans if you bought a jumper! so not really 'competition'.

Oops, apologies Mendi...didn't mean to come over like that at all (but can see how I did!).