Can you register a misspelled trademark?
Misspelled words can become registered trademarks, but not necessarily because of the misspelling. USPTO trademark examining attorneys will look into phonetic equivalents and the meaning of the term as properly spelled. If the similarly sounding word (as correctly spelled) would raise issues, such as mere descriptiveness or likelihood of confusion, then the misspelling might not avoid a rejection. Here are some relevant factors on whether you can register a misspelled trademark.
Would a misspelling make a merely descriptive mark registrable?
A misspelling might help to overcome a merely descriptive refusal if, for example, you can argue that there is a double meaning in the misspelled term. This double entendre argument has proven to be an effective in the past such as in the Artizen case for essential oils and related products.
You can also argue that the phonetic equivalent of a misspelled trademark is not what the examining attorney says it is. In addition to the sound, the appearance of a misspelling may also contribute to the distinctiveness of the mark.
Can a misspelled word still be considered generic?
Yes, it possible for a misspelled word to be considered generic in relation to the goods or services identified in the trademark application. An examining attorney may thus require the generic misspelled term to be disclaimed. If are thinking of applying for a misspelled word that might be considered generic, consider misspelling the term in more extreme ways to avoid the phonetic equivalent of the generic word. Keep in mind that a successful registration of a misspelled trademark would not afford rights to stop others from using a correctly spelled word to describe a product generically.
Can a misspelled trademark avoid likelihood of confusion?
A misspelled mark does not necessarily avoid the likelihood of confusion by virtue of the misspelling alone. Be careful not to emphasize how a misspelled word is pronounced since the TMEP states that there is no correct pronunciation for purposes of avoiding a likelihood of confusion. An applicant should argue factors beyond sound similarities or dissimilarites of a misspelled mark.
How to search misspelled trademarks
Given that there are limitless ways to misspell words, it’s obvious that searching for an exact misspelling may not turn up any results at the USPTO trademark database. You should search for both proper spellings and mispellings in order to yield more comprehensive search results. A misspelled trademark filing will likely have a proper spelling as a pseudo mark in the USPTO trademark search data.
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