Likelihood of Confusion?

If my trademark is taken, can I still register it? Maybe. It depends on how closely related your goods or services are and how likely consumer confusion is.

If you run a bakery and there is a video game that has already registered the name you want to sell your cakes under, chances are good that you may succeed in also registering this name for use in such a vastly different industry. It seems far-fetched that a consumer could reasonably mistake one product for the other.

On the other hand, if you distill spirits and there is a hard cider company with an existing registration for your name, you may be out of luck. Both of the products in question are alcoholic beverages and if the name is the same – or extremely similar – the chances of both registering are slim.

“But what if it’s not exactly the same?” In short, still probably not. Sure, you can try to register anything you like, but small differences between your mark and a conflicting mark aren’t going to make much of a case. As far as the USPTO is concerned, things like capitalization, spacing, and pluralization are relatively insignificant. Alternate spellings and homophones don’t generally create a distinct enough contrast, nor does the addition of a conjunction. What matters is the commercial impression a mark makes.

So, if a trademark already exists in your filing class for RATTLESNAKE, you are unlikely to have success filing RATTLE AND SNAKE for the same goods. It is, ultimately, in the eye of the USPTO, the same.

If you are working through trademark ideas, consider that the more unique elements exist in a mark, the more likely it is to succeed. The closer it is to a mark with priority use, the steeper the hill you’ll have to climb toward registration.