The phonetic similarity in sound is one factor in determining whether two trademarks are confusingly similar. See In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973); In re White Swan, Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988). Some examples of phonetically similar marks found confusingly similar:
- XCEED and X-SEED
- ISHINE and ICE SHINE
- SYCOS and SEIKO
- CRESCO and KRESSCO
- ENTELEC and INTELECT
If the two trademarks sound the same, there is a possibility they could be found confusingly similar. The USPTO Trademark Manual of Examining Procedure (TMEP) provides:
A slight misspelling of a word will not turn a descriptive or generic word into a non-descriptive mark. See In re ING Direct Bancorp, 100 USPQ2d 1681, 1690 (TTAB 2011) (holding PERSON2PERSON PAYMENT generic for direct electronic funds transfers including electronic payment services between individuals); In re Carlson, 91 USPQ2d 1198, 1203 (TTAB 2009) (holding URBANHOUZING, in standard character form, would be perceived by consumers as the equivalent of the descriptive term URBAN HOUSING, rather than as including the separate word ZING); In re Ginc UK Ltd., 90 USPQ2d 1472, 1475 (TTAB 2007) (“The generic meaning of “togs” not overcome by the misspelling of the term as TOGGS. . .”); In re Hubbard Milling Co., 6 USPQ2d 1239 (TTAB 1987) (holding MINERAL-LYX generic for mineral licks for feeding livestock); C-Thru Ruler Co. v. Needleman, 190 USPQ 93 (E.D. Pa. 1976) (holding C-THRU to be the equivalent of “see-through” and, therefore, merely descriptive of transparent rulers and drafting aids).
TMEP Section 1209.03(j) Phonetic Equivalent
When clearing a trademark for use and registration, a common pitfall is only using the exact, intended spelling of the mark. It is important to search phonetically similar trademarks as well.