Q: I am working on launching my skincare brand but when it came time to trademark the name I realize that another company
That also sells skincare trademarked my brand name within their slogan. It is three words and the only difference in them is the words "of" & "and" ..would I be able to trademark my brand name?
A: It is likely that a trademark application for a mark that is very similar to a registered trademark will be refused on the basis of likelihood of confusion, especially when the differences between both marks are minimal and both marks are used for the same goods or services. Consulting with an attorney is recommended.
A: It is likely the trademark application will be refused due to likelihood of confusion. You should consult with a trademark attorney or filing service to conduct a search and review the similar mark in detail.
A: If you can show your brand was the first in the market for your products and related categories, you may be able to file a petition to cancel the other company’s trademark with USPTO, because federal trademark law grants legal ownership to the first to use the brand in commerce, not the first to file. In any case, you need to conduct a common law comprehensive TM search yo determine whether any other preexisting unregistered brands are using the mark before you file. If it turns out you are preempted, you can work creatively with IP counsel to tweak your brand to satisfy both the legal elements of a proper TM filing while avoiding a likelihood of confusion. Consider consulting an IP legal and business professional attorney to develop an appropriate strategy for your situation and business plan.
Marcos Garciaacosta agrees with this answer
A: You should consider a different brand and have a consultation with an attorney.
A trademark that is "confusingly similar" to another one isn't eligible for registration in association with the same or related products/services. This is because the purpose of a trademark is to identify the "source" of specific products or services. In other words, a trademark must distinguish one seller from another, so that consumers aren't confused about who they are buying from.
Even if a confusingly similar trademark is (somehow) approved for registration, it likely wouldn't "function" well in the marketplace. For example, someone who is searching for one seller's website could too easily be directed to the other seller's website (and vice versa). Having a trademark that doesn't function well essentially defeats the purpose.
Last, when two sellers are using confusingly similar trademarks at the same time, there is a pretty good chance that one is infringing on the other's trademark rights.
A knowledgeable trademark attorney can help assess the likelihood of being able to register a proposed trademark, in addition to other considerations.
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