Klein & Wilson

Why three tenths degrees of separation is important

The idea behind the adage “six degrees of separation” is that people (or things) are all related to a certain extent, and that they can be connected in a maximum of six steps. This adage becomes especially important in the world of trademarks and intellectual property, where the goal is to stand out from others a product or idea may be related to.

This is ostensibly why Cocona, a Colorado based fabrics company, is suing a New York based business over the proposed use of its trademark. Cocona promotes its fabrics, that it licenses to a number of apparel makers, under the brand “37.5” which is the temperature in Celsius for the body’s normal temperature. It applied for and received marks for the name and the accompanying design in 2014 and 2015, respectively. 

When Conona discovered that Kartex Corporation applied for a trademark for “37.8” it filed an opposition before the Trademark Trial and Appeal Board. Kartex reportedly filed a counterclaim to cancel Cocona’s trademark while increasing its own offerings online.

This litigation exemplifies the need for experienced legal counsel, as most consumers would not be able to distinguish between athletic products touting “37.5” and “37.8,” as both are based on the premise of keeping the consumer warm. With this type of confusion, a retailer could lose a considerable number of sales through no fault of its own.

If you have reason to believe a company is infringing on your trademark, an experienced intellectual property attorney can advise you.

The preceding is not legal advice. 

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