Check Out ColorWare's Custom Apple Pencil Pro With a Crayon Design

[JapanApple]

That's a trademark.

Everything is copy written as soon as its written down / produced.

The point of matter is that belongs to Crayola crayon.

 

[LawJolla]

The point of matter is that belongs to Crayola crayon.

... and water is wet.

 

[JapanApple]

... and water is wet.

Better words that’s called it semantics cause that’s what you’re trying to do.

 

[LawJolla]

Better words that’s called it semantics cause that’s what you’re trying to do.

The difference between a copyright and a trademark isn't semantics.

Ask me how I know.

 

[BJMRamage]

Serious question. No one is likely to confuse their product with a Crayola, IMHO. For example, it says crayon, although the script is similar,and while it has stripes they are a bit different from Crayola’s. In addition, there are a lot of real crayons that are similar to Crayola’s but without the name. Beyond the cost to defend the product, do you think Crayola would have a strong case?

LawJolla (?) already replied and while nobody will think this is a crayon, they very well may think this is a Crayola product and have pricing that reflects this. You might say lots of crayons have a similar style so it is generic but if Crayola has a trademark on the design elements then they can/should fight back. The reason other companies may try to use a similar approach is to confuse the consumers.

and if they have an trademark or other IP rights to the design they HAVE to defend it or later on the courts will say these other products had a similar style and you didnt go after them so you dont have ground to stand on your trademark.

 

[jlc1978]

LawJolla (?) already replied and while nobody will think this is a crayon, they very well may think this is a Crayola product and have pricing that reflects this.

I'll let LawJolla add his experienced viewpoint but as a lay person here are my thoughts:

Nowhere does the name Crayola appear so I think that is very doubtful someone would think Crayola made these; especially given the niche nature of the product..

You might say lots of crayons have a similar style so it is generic but if Crayola has a trademark on the design elements then they can/should fight back.

I guess the question is are the design elements on sufficiently close enough to Crayon's trade mark to cause confusion, given they are not identical to them? I suppose a lawyer could argue either side, which of course is how they make money.

IMHO, crayon is a generic term and fonts can't be trademark, so do they make Crayola distinctive enough to warrant protection? The UofM's Block M springs to mind as such a case. OSU has a trademark on THE.

The stripes are also similar but not direct copies.

Given the number of real crayons that mimic but do not directly copy Crayola I suspect the answer may be it does not infringe. Who knows what a court might decide.

The reason other companies may try to use a similar approach is to confuse the consumers.

I sincerely doubt anyone confuse an Apple Pencil with a crayon or a marker, and IIRC, the possibility of confusion is key in trademark cases. You can have similar marks in different product categories and not infringe.

and if they have an trademark or other IP rights to the design they HAVE to defend it or later on the courts will say these other products had a similar style and you didnt go after them so you dont have ground to stand on your trademark.

True, but you have to pick the right battles and a trademark does not give you exclusive use in all product categories, unless you are the Olympics.

Godfather's Pizza and Godfather's Computers springs to mind.

 

[BJMRamage]

I'll let LawJolla add his experienced viewpoint but as a lay person here are my thoughts:

Nowhere does the name Crayola appear so I think that is very doubtful someone would think Crayola made these; especially given the niche nature of the product..



I guess the question is are the design elements on sufficiently close enough to Crayon's trade mark to cause confusion, given they are not identical to them? I suppose a lawyer could argue either side, which of course is how they make money.

IMHO, crayon is a generic term and fonts can't be trademark, so do they make Crayola distinctive enough to warrant protection? The UofM's Block M springs to mind as such a case. OSU has a trademark on THE.

The stripes are also similar but not direct copies.

Given the number of real crayons that mimic but do not directly copy Crayola I suspect the answer may be it does not infringe. Who knows what a court might decide.



I sincerely doubt anyone confuse an Apple Pencil with a crayon or a marker, and IIRC, the possibility of confusion is key in trademark cases. You can have similar marks in different product categories and not infringe.



True, but you have to pick the right battles and a trademark does not give you exclusive use in all product categories, unless you are the Olympics.

Godfather's Pizza and Godfather's Computers springs to mind.

I won't get into all the specifics but if they have a trademark for a writing utensil or electronic input device with a similar visual style if could fall under their trademark usage...I have no idea. it seems they may have a style trademark (as well as scent?) per someone's earlier post.


and I (and I think LawJolla if I remember) thought this was a Crayola stylus at first. I don't think it was totally random that the company chose this look for their crayon-based Pencil wrap.

Godfather's Pizza and Godfather's computers are distinctly different. a writing implement whether it is electronic or a physical item may be considered close enough. I have no ideas, only that I have had group meetings with our lawyers talking about trademark usage/law, etc.

and while there may be other crayon companies that use a similar style it could be overseas companies where a cease and desist would just end up creating a new company for more cheap crayons used in restaurants

I am not a lawyer, just a designer. I work with our legal department and have to make all sorts of updates based on their input so I won't take it lightly that this COULD be a trademark violation...but I could be wrong.