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.
A:
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 tania.williams@williamsfirmpa.com 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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