Sound similarity between two trademarks may be growing in importance to determine similar names after the report released by Bynder and OnBrand. Bynder and OnBrand released the 2018 State of Branding Report and GoodHands added to the report with their own comments on the state of branding. According to the report, 40% of respondents were investing in voice assistant technology for marketing purposes. This means that sound similarity between marks may need to be scrutinized more closely when conducting trademark searches.
The similarity of the marks is one of two potentially dispositive likelihood of confusion factors to determine is similar names exist. The other dispositive factor is the relatedness of the goods or services factor. The similarity of the marks factor broken down into three sub-factors: (1) visual similarity; (2) sound similarity; and (3) similar meanings. The analysis of these three sub-factors leads to a conclusion regarding the overall commercial impression of the marks and ultimately determining if they are similar names.
For the most part, visual similarity has dominated the other two sub-factors by receiving the most weight in the similarity of marks analysis. This is because consumers place more emphasis on things they can see. But sound similarity has been a close second to visual similarity. The reason sound similarity has not historically been on even par with visual similarity is because this sub-factor is more important in markets where goods or services are ordered or purchased by name. A good example of where sound similarity is important in the bar or restaurant market where orders are taken orally as opposed to a retail environment where consumers browse shelves or racks of product.
The rise of Internet shopping and increase use of Amazon’s Alexa and Google Home, are increasing the importance of sound similarity, which is being noticed by marketers according to the 2018 State of Branding report. As trademark searchers, we need to pay attention to this trend and when a mark may be visually different from other marks in the search results but sound similar we may need to raise the warning flag whereas in the past we could stand down.