Pixar has recently released a new fantasy movie named “Brave.” Disney, who owns Pixar, is attempting to register a trademark in “Brave,” but is experiencing significant difficulty. First is the baseball team the Atlanta Braves. The Atlanta Braves currently do not have a trademark on the word Brave, that being the singular use of “Braves.” However, what the Atlanta Braves do have is one century of use of the word “Brave” and have established significant common law rights as a result. Second, is the general reluctance of the United States Patent and Trademark Office at allowing trademarks for words associated to Native Americans. For instance, it took the NFL’s Washington Redskins over 17 years to trademark “Redskins.”
For practical purposes, this exchange between Disney and the Atlanta Braves is helpful to a normal business owner for two reasons. First, although another entity may not have a federally registered trademark, one still must believe the age old trademark phrase “first in time, first in right.” While federal registration is important to create prima facie evidence of a first use date, one does not necessarily need a registration to enforce trademark rights. Second, the standard for trademarks is “consumer confusion.” Adding an “s” to the end of Brave, does not change a trademark enough to differentiate Brave from Braves. The use of Brave or Braves is confusingly similar. This question happens a lot in our office, as many people believe that simply changing a character or adding an s will create trademark rights. This could not be farther from the truth. By way of example, all of the following would be possibly be considered confusing with “Braves.”
The Braves – Adding a nominal word such as the, a, or, etc., is not ok
Bravez – Adding an s or z to the end of a word is not ok
Br@ve – Adding a unique character in a word is not ok
Bravves – Changing the spelling of the word is not ok
Bravery – This IS ok (and as you may realize is a highly successful band)
Braveheart – This IS ok, as this is unique from the singular use of “Brave”
In conclusion, we recommend consulting an experienced intellectual property attorney when developing your business name or product, as a small amount of planning at the start of the project could help avoid serious trademark issues down the line.
Bradley Legal Group, P.A. are Intellectual Property lawyers, Entertainment lawyers and Music lawyers servicing clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Orlando, and Nashville. We also affiliate with entertainment lawyers licensed in New York and Washington, D.C. © 2012 Bradley Legal Group, P.A.