Law Office of Jason H. Rosenblum, PLLC

Intellectually Protecting Your Property ®

Just How Different Does My Trademark Have to Be from One That Is Already Registered? **Attorney Advertising**

As an Intellectual Property attorney and small business owner, I know how difficult it can be to settle on a trademark that accurately depicts your business or brand. I also know how frustrating it is to ultimately choose a trademark and then discover that there are other trademarks registered with the United States Patent and Trademark Office that are similar in name, design, or concept to what you’ve come up with.
Rule of thumb, a trademark application will be denied by the USPTO if it is “likely to cause confusion” with a prior registration. That is, if an average consumer would mistake your brand with another, or the products or services described are just too close, you’ll be sent back to the drawing board.
Before you fall in love with your trademark idea, take a minute to consider that most minimal changes or tweaks to an existing trademark will not be deemed different enough to be granted protection. So, if your potential mark falls into any of the below situations as related to an already existing mark, please rethink it before you fall head over heels:

  • Artificially adding spaces between words, like ABCCompany vs. ABC Company;
  • Using a different URL extension on the end of a word, like vs
  • Changing a similar colors in a stylized mark

In most cases, when it comes to allowable similarities in a mark, there needs to be a “meaningful” change to the mark in question.  Depending on the products or services offered, most consumers simply do not pay close enough attention to things like spacing between words and URL extensions, so the possibility of confusion between marks still exists; furthering that point is the fact that most marks are verbalized and not shown in material form in daily use. If you really want the USPTO to see your trademark as something unique, you’ll instead need to focus on creating more meaningful changes to your desired trademark like adding a stylized element or phrase.
Creating a trademark for your business or brand that stands out in the marketplace can be a difficult process. That’s why it’s important to establish a relationship with a trademark attorney from the start. Even as you brainstorm, your attorney will be performing searches in real time to give you inspiration while also guiding you away from trademarks that are already in use so that what you settle on is truly unique.
If you don’t already have a trademark attorney, we invite you to contact our law firm to schedule a consultation, whether that be in person, over the phone, or via Skype. We have offices in New York and South Carolina, and we work with clients virtually across the globe.  To get started, simply call 888-666-0062 and mention this blog post.
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney.
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