If your company shares the same market as the other company, you need to know if your company or the one claiming trademark infringement used your company`s name first. If you can prove that your company used the name for the first time, you have priority rights over it. Phonetic equivalence, or similarity of sounds, is another factor to consider in determining the likelihood of confusion. Nevertheless, it is almost impossible to predict how a mark will be spoken by the public. This means that you cannot rely on correct pronunciation per se. Thus, if two marks can be interpreted as having phonetic similarities, there may be a likelihood of confusion. According to the courts, the following marks are phonetically too similar: when it comes to the relationship between goods or services, the more similar the marks must be to each other, the less similar the goods or services must be to discover the likelihood of confusion. For example, if a company sells a soap called “Ole` Spice,” there`s a good chance it`s mistaken for “Old Spice.” However, if a company sells a cooking spice product, there is unlikely to be confusion. When marks have a common word or concept, marks may be considered similar even if one of the marks adds letters or a different word, especially if the material added is descriptive or evocative of the goods or services. Examiners often find a likelihood of confusion if the common part of the mark is considered to be the dominant element of the mark. Of course, the reverse is also true: if two brands share a descriptive word that buyers would not perceive as a distinctive source, it is doubtful whether there is a likelihood of confusion between the brands.
Unfair competition laws generally aim to protect both the business and the consumer from deceptive practices. In the case of a complaint of unfair competition arising from similar names, the objective is to prevent the consumer from being confused by a name and buying a product or service for which he is not what he believes, while protecting businesses against the loss of customers as a result of this fraudulent act. You may be wondering if you can protect your business name. Since trade names identify only the business and not the source of the goods or services, they cannot be registered under the Lanham Act. There is no trademark protection for a trade name that is only a trade name. However, you can use your name as a trademark and register for federal trademark protection if your company sells or offers services in interstate commerce under a trademark identical to your trade name. Trademark law is designed to avoid confusion among consumers about the trademarks that companies or other organizations use in connection with their products and services. In short, trademark law makes it illegal for a company to use a trademark (e.g., to use a slogan, logo, name) in connection with a good or service, if that use is similar to the use of a trademark by another company. To see how it works, imagine a consumer – Sally. When Sally buys a Dell computer, she can be sure that the computer was made by Dell Computer and no one else. It can take Dell`s reputation into account without having to worry about a copycat company making shabby computers with the Dell logo, as trademark law prohibits this type of confusing business activity and gives Dell the right to sue for damages and injunctive if someone does. After doing this research, you can get a rough idea of the similarity between the names and are confusing.
Examples of similar marks consist of two companies in the same sector using sufficiently similar marks to create confusion in the market. Branding products and services allow companies to maximize the profits of the brands they have worked hard to develop. Registering a trademark symbol or name as a trademark allows the trademark owner to sue others who attempt to use the trademark. Not all trademarks may be registered trademarks. Some trademarks are descriptive in nature and cannot be protected by trademark proceedings. However, if there are trademarks that can be protected and used by two different companies, the question arises as to which company uses the mark. The process of naming your business and obtaining trademark rights can be summarized in three fundamental points: There is a likelihood of confusion between trademarks when the marks are so similar and the goods and/or services for which they are used are so related that consumers would mistakenly believe they come from the same source. Each claim is decided on its own facts and there is no rigorous mechanical test to determine the likelihood of confusion. It`s a good idea to file an intention to use the application with the USPTO when identifying a name for your business you want to use.
If you submit this application and someone else uses a similar name before starting your business, your rights are protected. Examples of similar trademarks consist of two companies in the same industry using marks similar enough to create confusion in the marketplace.7 min read In addition, the Lanham Act makes a company civilly liable for the use of a name in commerce that is likely to cause confusion or error as to the origin of a product or service.