The use of misspelled trademarks may be waning a little in the wake of the human name trend, but that does not mean it has gone away. For example, there is a new lending company that landed on the mark THRYFT for its business name. Misspelled words may be a way to convey a compelling brand story and it certainly may open up a number of available top-level domain names. Unfortunately, what it will not likely do is avoid a problem with an already registered trademark.
Like reversing words, spelling variations are unlikely to avoid a likelihood of confusion with a prior registered mark. A misspelling is of some importance when evaluating the similarity of the marks factor, but unless the misspelling results in what is essentially a coined term, it is unlikely to avoid confusion. An example of this is a 2016 decision from the Trademark Trial and Appeal Board for the marks INDI and INDY for clothing. In this case, while the Board found the marks are visually and phonetically similar, the spelling of the INDI word rendered it meaningless whereas the INDY word had a distinct auto racing meaning.
Trademark searchers need to be aware of possible misspelled trademarks that could pose a problem the trademarks they are considering adopting. Unless you are a linguist, the possible alternate spellings of word may not be readily apparent to you. One way to determine if a possible alternate spelling exists is to use – what for it – the Alternate Spelling Finder. This tool will identify possible alternate spellings for any word.
The problem with the Alternate Spelling Finder is two fold. First, you need to determine how realistic some of the proposed alternate spellings are. Second, if you conclude the alternate spellings are realistic, it is impracticable to include all of the spelling variations in your trademark search. With a trade search tool like BOB, you could use the multi-name search functionality and search all the possible spelling variations at a reasonable cost. But there is an easier way to do it and a much lower cost.
Use BOB’s Wild Card search functionality and use the $ and ? symbols. These symbols represent any number of space or non-space characters. For example, let’s say you use the Alternate Spelling Finder to search the word “BABY.” You will get about 24 alternate spellings and all but a couple begin with the letter B and end with the letter Y with about 2-3 letters in between. To capture the spelling variations of the word BABY, you enter in the Wild Card Field B???Y. This search will look for words that begin with the letter “B” end with the letter “Y” and have 2-3 letters in between regardless of what those letters may be. And you only pay for 1 search not 24 searches.