Using a term that has already been registered as a trademark may infringe the rights of the trademark owner. The trademark owner may then pursue legal action against the trademark infringement.
When choosing a name, it is therefore important to observe existing trademarks that are identical oder confusingly similar to your desired name. The key issue, i.e. if the use of a name infringes someone else’s trademark, depends on various factors that cannot be computed. Trademarks and their protection are unlike 1 or 0 or yes or no. The answer depends on the evaluation of numerous circumstances. This is the reason why our trademark results are simplified and serve as an indication only. Green signals that no identical trademarks exist whereas red indicated that identical trademarks are registered.
These results still have to be interpreted. An existing trademark (red) that is identical to your desired name doesn’t mean that your name will automatically result in a trademark infringement. But it also means that trademark infringements are possible even if no exact match (green) trademark shows up in our search.
Trademark infringement is determined by a likelihood of confusion which is determined by similarity. To determine similarity, two major elements are considered. The trademarks have to be similar and both parties have to be offering similar goods or services.
First element: Comparison of marks
The most important element is similarity between the name and existing trademarks. Similarity can be determined by the appearance of the trademark looking at visual and phonetic similarity or meaning. Similarity is determined by looking at letters, pronunciation, meaning and impression.
Example 1: BABIDU and BABILU, FORTIS AND FORIS are both visually similar.
Example 2: The terms FourU and foryou have a different meaning and visual appearance but they sound almost identical.
If a term is similar to a registered trademark, it also has to be used by offering similar goods and services to constitute a trademark infringement.
Second element: Comparison of goods or services
Every trademark has to be registered for specific goods and services. The second element checks, if the goods or services registered with the trademark are closely related to the goods or services using the new name.
Goods and services may be compared by the International Class number used at trademark offices around the world. In most legislations, the class number is relevant but goods and services may still overlap with classes that are not registered with the trademark. It is therefore important to compare the actual goods and services rather than simply comparing class numbers in a trademark registration.
Trademark Protection in the right territory
Trademarks can be protected in almost every country but most trademarks are only protected in a few countries. If for example a trademark is protected in Germany but not in the United States, you may use your name in the US but you may not offer your goods or services to German customers. If you plan to expand to further countries ensure that your name is not protected in these countries.
Avoid names that are similar to existing trademarks. If your chosen name is similar to an existing trademark, ensure that you will not be offering similar goods or services in the same country that the existing trademark protects.
Trademark evaluation is not a trivial matter. When in doubt, please consult a trademark attorney.
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