Q: I just found out the name that I've been using for years is trademarked already, but is spelled different. Can I still
Can I still trademark and use the name even though the spelling is different? Another thing the logos are totally different.
Infringement is similarity in sight or sound for similar goods or services. Many factors exist - when did you first use - are the goods / services similar - where is the opposing using the mark - how do you use the mark?
You will have to see counsel who will have to see all documentation, records etc.
A: Different spelling is not always sufficient to differentiate a trademark. If the marks sound the same that could constitute confusion. If you've been using the mark for years, you may have a priority claim in your geographical location, but you should contact a trademark attorney asap because you could also be at risk for an infringement claim. Feel free to call me at 561-370-7396 or email me at firstname.lastname@example.org if I can assist further.
Timothy John Billick agrees with this answer
A: This is impossible to answer without comparing the two marks (as they appear to consumers). Consult an IP attorney to help you.
A: Generally speaking, the USPTO trademark examiner will probably look at how the marks "sound" when spoken to see if it could be considered "confusingly similar" to another pre-existing trademark. If so, this can deny you the mark. Check with trademark counsel to be sure.
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