# Your brand name is similar



## GetemDuck (Nov 19, 2009)

So the brand names are ficticous here but the concern is real. Let say you came up with your brand you confirmed the url is available you confirmed the name was not used by checking your state website search and no one is using "skateboard apparel" in your state so you start building your designs, marketing an filing your paperwork then you find a business called "sk8board apparel" this business is on the west coast you are on the east coast neither are registered or trademarked yet should you stop what you are doing and find a new brand name or can two business have the same name in the same industry? 

This concern is real I am in the middle of launching my brand which is a word spelled the correct way and recently I stumbled onto a business selling low end quality designs for the same niche with the same word spelled different, while I know I can design and market better they are already established so will this cause me issues later when I go to register/trademark my brand?


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## Industryps (Aug 9, 2016)

I have dealt with this same issue while starting/helping to start a handful of brands. 
In theory, you can proceed and use a similar name as your competitor, but there are some things to consider-

• How established is the other brand? If they already have a decent following, a presence online and existing customer base, it will be an uphill battle for you and you'll risk always being seen as that "other brand" with a similar name to the existing brand.

• How married to the brand name are you? I know coming up with a name is one of the hardest parts but maybe there is some ideas that were back-burnered that you can revisit?

Getting your ideal customers to become aware of your brand is going to be one of the hardest parts of starting your project, and having an established competitor with a similar name will only make it harder.


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## TrueNorthGear (Sep 27, 2005)

One other thing to keep in mind. You said they are selling low end quality. If your name is similar, you run the risk of people connecting your name to low end quality.


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## into the T (Aug 22, 2015)

not worth the headaches now or down the road

i'm with Industyps, re-visit your brainstorming sessions and see if something clicks
build off that name or start with a new simple design and then think of a name


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## GetemDuck (Nov 19, 2009)

Thanks for the advise guys I am on the fence as we have a lot of work into building this up the right way and the other company is pretty small time, but we may back track a little and see if we can think of a creative solution that separates us a lot more.


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## NoXid (Apr 4, 2011)

One other consideration. The guy with the creatively spelled business name has the better name: it is both more memorable AND more defensible as a trademark.

Common words used in a merely descriptive way make for weak trademarks. It may not make a lick of sense to you, but this is how the courts/law view it. "Apple" would be a very weak name for a fruit company, but it is a strong name for a software company. There is a reason that words in name brands are commonly "misspelled" or just made up gibberish.


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## kimura-mma (Jul 26, 2008)

GetemDuck said:


> you confirmed the name was not used by checking your state website search and no one is using "skateboard apparel" in your state


Registering a business name is done on the state level. But trademarks, especially if you intend to sell your products beyond your own state, are done on the federal level. So you probably should have done a broader search right from the beginning. Searching the USPTO website should have been a top priority.



GetemDuck said:


> then you find a business called "sk8board apparel" this business is on the west coast you are on the east coast


As mentioned above, trademarks are registered on a federal level. So it doesn't matter which coast you are on. If your brand names are too similar, it could be a legit problem at some point. The USPTO identifies trademarks based on sight, sound and meaning. In your example of SKATEBOARD APPAREL versus SK8BOARD APPAREL, there may be a slight difference in sight; but the sound and meaning of the two marks are identical. That will be plenty of reason to cause confusion and the USPTO will likely not allow both marks to be officially registered.



GetemDuck said:


> neither are registered or trademarked yet


"First use in commerce" is what defines ownership a trademark. If the other company can prove first use of their mark before you, they will be granted ownership of the trademark (even if you are first to actually apply for a trademark).



GetemDuck said:


> should you stop what you are doing and find a new brand name


Yes, you should probably stop and find a new original brand name.



GetemDuck said:


> can two business have the same name in the same industry?


Two businesses - in different states - can have the same "corporate name" in the same industry. But "brand names" or "trade names" are different. Technically, you both can operate independently and never have any issues. But if one of you take legal issue with the other, only one of you will be granted the legal rights to the trademark. And as mentioned, first use in commerce will likely win out.



GetemDuck said:


> I am in the middle of launching my brand which is a word spelled the correct way and recently I stumbled onto a business selling low end quality designs for the same niche with the same word spelled different


The spelling difference would have to so unique that there would be no confusion between the two marks. In your example of SKATEBOARD APPAREL versus SK8BOARD APPAREL, the two marks would likely be considered too similar.



GetemDuck said:


> while I know I can design and market better they are already established so will this cause me issues later when I go to register/trademark my brand?


The USPTO doesn't care who designs or markets better. They only care who started using the mark first. So if the other company is already established, it's best to steer clear of using the mark. If the other company has not applied for a trademark, technically, you could go ahead and apply for a trademark registration. You may not have any problems because the USPTO will not find any issues based on any existing trademarks. But if the other company ever finds out about you and wants to take action, they can. And if they can prove first use, they will likely win ownership of the mark. If it turns out that the other company does in fact have an existing trademark, then you will likely have problems trying to register your trademark from the beginning. Either way, it's best to just come up with a new name.

Hope this helps and good luck!


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## GetemDuck (Nov 19, 2009)

Thanks Kimura, that is what I was thinking, that that like names can not be in the same business. We did do a search on TESS on USPTO and only two dead results came back. So we moved forward but to avoid the risk of a headache we are going to re think this. Thanks again for your input.


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## DrivingZiggy (Apr 24, 2017)

Perhaps you could buy the name from them? But then you'd have an uphill battle to separate yourself from a lower quality product.


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