Who can legally use the name “Dream Cruise?” Dalton & Tomich plc respond to trademark issues surrounding the commerical use of the name in M-LIve. MLive_AttorneyDreamCruiseLive.pdf
Sure, it is more of a trademark / copyright issue.
Products, like people, have personality — and a winning personality is a trademark owners most valuable asset. A key element of a product’s personality, or brand image, is its packaging. Under trademark law, the total commercial image of a product is known by the term “trade dress.” Trade dress refers to the manner in which a product — or place of business — is “dressed up” to go to market. It’s what differentiates one brand of cola from another. While “innocent” intent is no defense to either trademark or trade dress infringement, “bad faith” may either prove likelihood of confusion or raise an inference of likelihood of confusion. Trade dress is governed by the same set of laws that protects unregistered trademarks. Like a traditional trademark, trade dress is a form of commercial shorthand that provides a “source-associating cue” for the unthinking purchaser. However, unlike traditional trademark law that protects words or logos, trade dress law protects the total packaging and design of a product. To be protectable, trade dress must be inherently distinctive or possess “secondary meaning” (the public associates the packaging with a single source). Further, the trade dress must be non-functional. As a rule, for trade dress to be protected, it must be instantaneously identifiable in the mind of the
purchaser. This is usually the function of strong sales over a long period, supported by consistent advertising, promotion and publicity.
Protectable trade dress is infringed when a “likelihood of confusion” exists between defendant’s trade dress and plaintiff’s trade dress. The similarity between trade dress is gauged by the “ordinary buyer” standard. Would “unthinking” buyers believe both products
came from the same source? If the same overall impression leads the ordinary buyer to that conclusion, infringement probably exists. Among the factors a court will weigh to determine likelihood of confusion are: The strength or distinctiveness of the trade dress; The intent to copy and “cash in” on plaintiff’s reputation and goodwill ; The similarity in products ; Evidence of actual confusion; Degree of care exercised by buyers, and the area, manner and degree of concurrent use.
The business and employment attorneys of Dalton & Tomich take your business just as seriously as you do. Attorneys Zana Tomich and Noel Sterett are trusted by closely held family businesses and others across Michigan and Northern Illinois as invaluable partners and counselors. We guarantee all your calls and emails will be returned within one business day so you can focus on what you do best: running your business.
Having worked with Zana for 10 years, I can attest to her professionalism, her pragmatism, and most importantly, her integrity. I always get sound, thoughtful advice and guidance. From routine filings & updates to the highly unexpected, Zana’s there to help, always responding quickly and […]Read More
We highly recommend Dalton & Tomich! As a start-up firm that has rapidly grown across the country in under 5 years, Dalton & Tomich has been integral to our sound, credible, and excellent in standard infrastructure. As we’ve scaled, Zana has been right by our […]Read More
As a professional photographer in the wedding industry, reliable communication is very important to me. Noel was very knowledgeable and quick to respond to all of my questions and not just that, he also gave me suggestions when reviewing and updating my contract. The entire […]Read More
Zana’s expert guidance has helped us to move forward with clarity and confidence in our business endeavors. She helped us create a new business entity, and a few years later to navigate a tricky buyout—all with a clear path forward for business growth. Her calm […]Read More
Noel’s guidance was much appreciated when redrafting my client contract. He was very professional, respectful of my time and potential costs, and was sincere with his advice. I trusted that he had the highest good for my business in mind. I will seek out his […]Read More
Zana’s expertise in employee law has helped us refine and build a stronger operations and hiring strategy at my company. As a business owner of a small and fast growing company, I very much appreciate Zana’s ability to always step into any situation quickly and […]Read More