Can I trademark a similar word. I get this question a lot. For example, can I change one letter, or a few letters in someone else’s trademark and get my own trademark?
That’s a great question! The question often comes up in the context of trademark registration at the US Trademark Office. But the same standard applies to trademark infringement.
Is it enough to change an ‘S’ to an ‘X’. Probably not. To determine whether you can trademark a similar word, you have to do more than change one letter.
The standard is not whether the marks are identical. Instead, the question is whether the consumer of this product might be confused by the trademark as to source of the product. Trademarks designate a source of goods (products) or services. Whether someone is confused depends on a number of factors, called the DuPont factors after a trademark case involving DuPont. These factors are used to determine how likely it is that the consumer will be confused.
One of those factors is the level of sophistication of the consumer. Consumers will generally be more sophisticated when purchasing high-dollar items, such as automobiles. Consumers are generally less sophisticated when it comes to low-dollar purchases. For example, beverage consumers are not necessarily sophisticated when making purchasing decisions. It would be easy for a beverage consumer to grab a 6 pack of Mountain Do, thinking they were buying Mountain Dew. Hence no one can register a trademark for “Mountain Do” for beverages.
It’s best to check with a trademark attorney before using or applying for a registration for a mark for your product or service. Find out what the US Trademark Office says about working with a trademark attorney.