In part one of this post, I outlined the ways to find a fanciful name for your business, one that is likely to be unique, unlikely to be confused with any other business’ name, and a surefire bet to be registered for a trademark with the United States Patent and Trademark Office (the “PTO”). After finding a fanciful name, though, the work of ensuring a low likelihood of confusion isn’t over just yet. You must also avoid confusion with any other name that is either registered or being used in commerce. Even if you think your name is one of a kind, keep in mind the following factors.

 

Phonetic and Visual Similarities 

Trademarks are not only based on the written name, but also on how that name sounds and looks. So, names that look or sound similar to existing marks are risky. For instance, “Pepsee” might not be registered, but it would be risky because of its phonetic and visual similarity to Pepsi. How the mark could be pronounced is more important than how it is intended to be pronounced.

Marks may also be confusingly similar in appearance despite the addition, deletion, or substitution of letters. For example, Trucool and Turcool and Miltron and Milltronics were both found to be confusingly similar. Generally, the more unusual or unique a word is, the stronger its trademark protection; this means that even fairly different names (e.g., Pipsee) might be considered confusingly similar. This is true even if the products are totally different—for instance, if “Pipsee” made sunglasses.

 

Same Meaning

 Another pitfall to avoid is choosing a name with too similar of a meaning to an existing mark. Examples of this are “Mr. Rust” infringing on a “Mr. Clean” and “Promise” infringing on “Pledge.” It’s important to check synonyms for whatever name is chosen to make sure there isn’t a clear similarity of meaning with an existing mark.

 

Competitors

Businesses sometimes have an intuition to look at the names their competitors use for inspiration. This can cause confusion if a competitor uses an arbitrary name and you use a similarly arbitrary name. For example, if a new computer company named their product “Pear,” the similarity to Apple could be grounds for the PTO to reject Pear.

 

Weeding Out Confusion

There are two primary ways to find out if your name is likely to be confused with another existing name: 1) searching the PTO database, TESS, to make sure the name hasn’t been registered or applied for, and 2) searching through Google to see if the name is being used by a company that hasn’t gone through the PTO yet. Remember, it’s not enough to look for your exact name alone; search for variations of the spelling, sight, and sound of your name too. On TESS, putting “$” in the middle of words (e.g., Z$na) or “*” before or after them expands the search so that you can find all variations of your potential name.

 

Conclusion

There were over half a million new trademark applications in the last year alone. Finding a name that won’t be confused with these or the countless others already in existence is one of the first big hurdles for any new business. If you follow the guidelines provided above, though, you can be confident you’ll find a name that lets you have a good night’s sleep.