PSEUDO MARKS (LITERAL or PHONETIC EQUIVALENTS)
The USPTO has a pseudo-
Both active and inactive marks can be searched through Trademark Electronic Search System (TESS). A registered mark is considered “inactive” and no longer entitled to protection if its registration period has expired without renewal, a required affidavit has not been filed, or the mark has been cancelled.
The USPTO may assign pseudo marks, as appropriate, to new applications to assist in searching the USPTO database for conflicting marks. Pseudo marks have no legal significance and will not appear on the registration certificate. The pseudo-
A pseudo mark may be assigned to marks that include words, numbers, compound words, symbols, or acronyms that can have alternative spellings or meanings. Pseudo-
For example, if the mark comprises the words 'YOU ARE' surrounded by a design of a box, the pseudo mark field in the USPTO database would display the mark as 'YOU ARE SQUARE'. A mark filed as 'URGR8' would receive a pseudo mark of 'YOU ARE GREAT'.
Other examples: the pseudo mark for http://LaserJet.com is LASER JET; the pseudo mark for http://MarylandUniversity.edu is MARYLAND UNIVERSITY; and the pseudo mark for http://SmithLaw.net is SMITH LAW.
WHAT IS THE PROBLEM WITH PSEUDO MARKS? WHY ARE PSEUDO MARKS AN ISSUE FOR TRADEMARKS?
As a general rule, pseudo marks cannot be used to get around the finding that the terms used are merely descriptive, primarily geographically deceptively misdescriptive or that a likelihood of confusion exists. A novel spelling of a merely descriptive word or term is also merely descriptive if purchasers would perceive the different spelling as the equivalent of the descriptive word or term. See In re Hercules Fasteners, Inc., 203 F.2d 753, 97 USPQ 355 (C.C.P.A. 1953) (holding “FASTIE,” phonetic spelling of “fast tie,” merely descriptive of tube sealing machines); Andrew J. McPartland, Inc. v. Montgomery Ward & Co., 164 F.2d 603, 76 USPQ 97 (C.C.P.A. 1947) (holding “KWIXTART,” phonetic spelling of “quick start,” merely descriptive of electric storage batteries); In re State Chem. Mfg. Co., 225 USPQ 687 (TTAB 1985) (holding “FOM,” phonetic equivalent spelling of “foam,” merely descriptive of foam rug shampoo); TMEP §1209.03(j).
A number of cases have found that a misspelling formed by substituting the letter "k" for a "c" is not sufficient to turn the otherwise unregistrable term into a registrable mark. In re Jonathan Drew, Inc. (TTAB 2011); King-
Similarity in sound alone may be sufficient to support a finding of likelihood of confusion. RE/MAX of America, Inc. v. Realty Mart, Inc., 207 USPQ 960, 964 (TTAB 1980); Molenaar, Inc. v. Happy Toys Inc., 188 USPQ 469 (TTAB 1975); In re Cresco Mfg. Co., 138 USPQ 401 (TTAB 1963); TMEP §1207.01(b)(iv). Slight differences in sound do not overcome overall similarity between marks, as slight differences in the sound of similar marks will not avoid a likelihood of confusion. In re Energy Telecomm. & Electrical Ass’n, 222 USPQ 350 (TTAB 1983).
TMEP 1207.01(b)(iv) Similarity in Sound – Phonetic Equivalents
Similarity in sound is one factor in determining whether there is a likelihood of confusion between marks. There is no “correct” pronunciation of a trademark because it is impossible to predict how the public will pronounce a particular mark. Therefore, “correct” pronunciation cannot be relied on to avoid a likelihood of confusion. See, e.g., Centraz Industries Inc. v. Spartan Chemical Co. Inc., 77 USPQ2d 1698, 1701 (TTAB 2006) (acknowledging that “there is no correct pronunciation of a trademark” and finding ISHINE (stylized) likely to be confused with ICE SHINE, both for floor-
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