Key Takeaways

  • A “similar trademark” can lead to rejection if it creates a likelihood of consumer confusion.
  • The USPTO evaluates marks based on appearance, sound, meaning, and commercial impression.
  • A comprehensive trademark search goes beyond USPTO databases and includes domain names, social media handles, and state registries.
  • The relatedness of goods/services and the strength of existing marks are central to the USPTO’s analysis.
  • Trademark clearance searches are critical before filing to reduce legal risk and cost.

Similar trademarks can exist, but when registering a trademark, it's important not to use a trademark that's “confusingly similar” to an existing one. The Trademark Office will likely reject applications for a mark that could confuse the public about the association or relationship it has with another company's trademark.

How the USPTO Analyzes Similarities

The U.S. Patent and Trademark Office (USPTO) checks applications for several things, including the following: 

  • If the applicant has turned in a proper specimen
  • If the trademark is distinctive enough not to be confused with another one

The Office will conduct a trademark search to see if your mark is “confusingly similar” to marks that are already registered or pending application. Your application will be rejected if the Trademark Examining Attorney finds a conflict.

Entities that hold trademarks have the rights to that mark and are able to use it in commerce. Marks that are too similar to existing ones infringe on those rights. Trademark law works to prevent this confusion, so the USPTO tries to bar registration of trademarks that could confuse the average consumer.

The Trademark Office consider two factors most heavily: 

  • How similar the marks are
  • How related the goods/services are

The applied-for mark and its goods/services are compared to other registrations and applications and their goods/services. If they're too similar, the application will be rejected on the basis of a “likelihood of confusion.”

It's not always easy to determine if two trademarks are actually confusingly similar. If the goods/services of the two marks aren't related, it's less likely to cause confusion. However, when trademarks contain the same word(s), they can create confusion even if their industries aren't related.

Additional factors that determine similarity include the following: 

  • Whether an existing mark is famous
  • How similar the channels of trade are between marks
  • If there's been actual confusion caused by the similarity
  • The consumers
  • The conditions under which sales are made

Analyzing similarity isn't just done for trademark applications. It's also done for mark oppositions or cancellations. For those situations, one party asserts a likelihood of confusion with its mark. They're trying to either cancel a registration or stop an application from becoming a registration.

The USPTO compares marks by examining them in their entireties, including their sound, meaning, appearance, and commercial impression.

Why a Comprehensive Search Is Crucial

Before applying to register a trademark, conducting a comprehensive search is critical. The USPTO's TESS database is only one part of the puzzle. A thorough clearance search should also include:

  • State trademark registries
  • Domain names
  • Business name directories
  • Social media usernames
  • Common law marks (those used in commerce but not registered)

Many rejected applications result from overlooking unregistered or pending trademarks that are confusingly similar. These marks still carry legal weight and can trigger opposition or litigation. A legal professional or trademark attorney can help conduct these expansive searches efficiently.

Determining Similarities in Trademarks

A big misconception about trademark similarity is that the testing of likelihood of confusion compares the marks side by side. This isn't an appropriate test. The actual test takes into account all relevant facts about the marks' sounds, appearances, connotations, and commercial impressions. 

  • Considering all those, does a likelihood of confusion exist as to the services or goods?
  • Will the average consumer believe that the two trademarks are connected, affiliated, or related?
  • Will he or she think that the goods or services come from the same source?

If there's a common word or phrase in different trademarks, they might be considered similar, even if there are other letters or words added. If the shared part of different trademarks is the dominant element of the mark, the examiners are more likely to rule for confusion.

The opposite can be true, so if two marks both have a descriptive word that the average consumer wouldn't find distinguishing, examiners probably won't find a likelihood of confusion there.

Marks may be found similar if they sound alike, but there's really no correct way to pronounce a trademark. The thought behind this rule is that no one can predict how a consumer might pronounce a specific trademark or term.

The trademark's meaning in connection to its services or goods has to be determined in the application. An Examining Attorney presumes that a person seeing the mark will have a general impression of the mark and not a specific one.

While some people may try and create trademarks that are similar to existing ones (especially famous marks), the USPTO carefully examines all applications. The Office will reject marks that are designed to confuse consumers, most often in an effort to profit from a more well-known trademark. It's best to apply for trademarks that are unique and distinguishable if you want your application to be accepted on the first try.

Common Myths About Similar Trademarks

Several misconceptions persist regarding what makes a trademark "similar." It's important to understand what the USPTO does not consider a strong defense:

  • Spelling Variations: Minor spelling changes (e.g., "Kool" vs. "Cool") do not eliminate the likelihood of confusion.
  • Different Fonts or Logos: Visual stylization does not outweigh the similarity of wording or pronunciation.
  • Different Products, Same Market: Even if your product differs slightly, if it targets the same consumers or is sold in similar channels, confusion is still possible.
  • Ownership of a Domain: Having the ".com" version of a name doesn’t give exclusive rights if the name conflicts with an existing mark.

The USPTO analyzes the overall impression of a mark—not individual differences in isolation.

Key Elements That Increase Risk of Rejection

When examining potential conflicts between a proposed mark and existing trademarks, these factors can increase the risk of USPTO rejection:

  1. Highly Similar Core Terms: Shared dominant words or syllables carry more weight than different endings or prefixes.
  2. Overlap in Industry or Function: If both marks are used in closely related sectors, confusion is more likely.
  3. Established Reputation of Existing Mark: Famous or well-known marks enjoy broader protection—even across unrelated goods/services.
  4. Similarity in Marketing Channels: Selling through the same stores, platforms, or distribution systems raises red flags.
  5. Evidence of Past Confusion: Actual consumer confusion—such as misdirected calls or emails—strengthens a claim of similarity.

Applicants should proactively assess these risk points before filing a trademark application.

What to Do If Your Trademark Is Similar

If you discover that your intended mark is similar to an existing one, consider these options:

  • Modify the Mark: Adding distinctive words or graphics may reduce the risk of confusion.
  • Change the Goods/Services: Narrowing or clarifying the scope of use can help differentiate your mark.
  • Use a Different Brand Name: Starting over may be the best option if the conflict is too significant.
  • Consult a Trademark Attorney: Legal professionals can advise on the risk level and help draft responses to USPTO office actions.

Being proactive reduces wasted time and filing costs and helps build a stronger brand from the outset.

Frequently Asked Questions

  1. What is a similar trademark?
    A similar trademark is one that resembles an existing registered or pending mark in appearance, sound, meaning, or commercial impression, and could confuse consumers.
  2. Can two similar trademarks exist?
    Yes, but only if they operate in unrelated industries and don’t create consumer confusion. Otherwise, one may be rejected or legally challenged.
  3. How do I search for similar trademarks?
    Start with the USPTO’s TESS database, then search state registries, domain names, and online platforms to catch unregistered but active marks.
  4. What if my application is rejected for similarity?
    You can file a response to the office action, revise your trademark, or appeal the decision. Consulting a trademark attorney is highly recommended.
  5. Does spelling variation help avoid conflict?
    Not necessarily. Spelling differences that don’t change pronunciation or overall impression are usually not enough to avoid confusion.

If you need more information about or help with trademarks, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.