If someone has a very similar name, can I get a trademark?

I am developing a web site with an idea that it would be a networking platform for small companies. I have registered the name (Let's call it www.merchandiize.com for now...), however I have discovered that there was and other website www.merchandise.com on their website it was mentioned that "patent pending" and it is a car rental website.

Would I be able to use this name after they got their patent? The business models are totally different, just ise and iize are different.

Thanks.

Patent Trademark

asked May 19 '13 at 00:40

Disconnect25
16 points

The patent is likely to cover some aspect of how they conduct their business, not their name, so that shouldn't really be an issue. OTOH, they may claim trademark infringement if your domain name is likely to cause confusion with theirs in their target markets. – Steve Jones 11 years ago
Thanks for the response – Disconnect25 11 years ago
**You're getting them confused.** PATENT: This protects an *invention* for up to 20 years. TRADEMARK: This protects the *name* of a company. (Similar to tradename and service mark: you can Google these.) COPYRIGHT: This protects a work of art (music, video software, art, sound software (the code, not how it works: you can *patent* a breakthrough in software. If you can make a better search engine, you can patent that), literature, etc.). Copyright's the cheapest and patent is the most expensive most of the time. – Annonomus Person 11 years ago
One more thing I forgot: Copyright is applied when you make the work (filing just gives proof in court) and trademark can sometimes be "implied" in court if it has been around for a lot longer. (If I trademark "xyz" but you have been running a business that everybody knows about called "xyz" 20 years longer than I had the trademark, technically you might be able to argue I copied you. It gets messy from here.) Patent pending means that they filed a "provisional patent" (lasts one year) and they want to sell it before they spend all the money patenting it. – Annonomus Person 11 years ago
I looked up your "trademark competitor" (easy to find out the name... I won't say it because it seems like you want to keep it a secret) and I looked it up in the trademark database and they don't even have a trademark. Search `[their name] Rent-A-Car` and it wont show up. [Trademark search](http://www.uspto.gov/trademarks/index.jsp) Click on "TESS" – Annonomus Person 11 years ago

1 Answer

There is probably a patent on the actual software being used that is pending, rather than most other things. Overall, you should be fine. Trademark law would be the closest thing that would apply to you, and it doesn't apply in this case (if you're in the US at least). The reason being is that you are offering a different type of service/good than they are. There isn't likely to be confusion between merchandise.com renting cars and merchandize.com bringing networking abilities to small businesses.

As always, your mileage may vary, and don't take legal advise from the internet. If you believe that you may be crossing a line, consult an attorney for additional guidance.

answered May 19 '13 at 20:10

Randy E
632 points

+1 for "always talking to an attorney." Most of us don't have a degree in law, but we know a lot about it from experience. Side note: I agree with since you have different services, you can both register under similar names, unless they are registered in the same category as you (food, electronics, etc.; I don't know what they are). The patent was for their invention, maybe something like their search engine. – Annonomus Person 11 years ago
I appreciate all the responses. It seems that i am good in this case. AS the business models are 100% different from each other. Thanks – Disconnect25 11 years ago
I'd still talk to an attorney- there are many factors to consider beyond what Randy E posts. (I'm a lawyer.) – User6492 11 years ago