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Frequently Asked Questions

How are design trademarks treated by examining attorneys?

Design trademarks are meticulously examined by attorneys due to the potential for confusion that can arise from similarities between various design trademarks. The risk of confusion is particularly high when the design trademarks are used in the same product or service category. For instance, a silhouette of a man and woman used by a company distributing health and beauty items could easily be confused with a similar design on a specific health and beauty product. The same principle applies to wordmarks. If a wordmark evokes the same image as a pictorial depiction already in use, it could be deemed too similar and thus refused. An example of this was a case involving a shoe company that used a lion's head silhouette with the letter L for their logo, which was ruled to be too similar to a wordmark lion used by another shoe company. Composite trademarks, which are a combination of words and designs, are also carefully considered. The United States Patent & Trademark Office (USPTO) often gives greater weight to the more significant feature during its likelihood of confusion analysis. In most cases, the word element is given the greatest weight, as consumers are more likely to use words for reference in regards to goods and services. However, courts may be more flexible when considering which element should be considered the dominant one.

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