It can be tempting to kinda-sorta copy another company’s name. We’d urge you to resist the temptation, even if you think you could make it different enough to get the trademark.
We’ll start with a little reminder which applies to life beyond naming: just because you CAN do something doesn’t mean you SHOULD.
When you see a competitor doing things well, it can be tempting to do things that are “inspired by” what they are doing. Benchmarking is one thing, but when it comes to branding, we urge you to stay away from doing anything similar to the competition. This applies to all aspects of the brand: name, messaging, look, feel, visual representation, etc.
This has a practical impact, as far as the law is concerned. From a trademark law standpoint, choosing a name that is similar to a competitor’s is potentially problematic because it can lead to refusals from the USPTO, preventing you from registering your mark. Even worse, it could instigate a trademark infringement lawsuit from the competitor.
But there are also more subtle implications worth considering. One of the measures used by the USPTO when evaluating trademark applications is “likelihood of confusion” – but that’s a rather subjective term. You might be able to squeeze something by the USPTO such that in theory a consumer wouldn’t confuse your brand with that of a competitor, but that doesn’t necessarily mean that the brand name is sufficiently different in the eyes of the consumer. And that can be a problem.
In order to bring this idea to life, let’s take a look at a real-world example you’re probably familiar with. Consider these four “dollar” stores: Dollar Tree, Dollar General, Family Dollar, The Dollar Store.
You can easily imagine the conversations that happened around naming in the early days of these companies.
“What do we want the name to convey?”
“That this is a dollar store.”
“But we can’t be called the Dollar Store – it’s taken.”
“Well, how about Dollar General, since we’re kind of like a general store, too.”
“Yes – let’s see if we can get the trademark!”
Harmless enough, right? Makes total sense.
But now let’s think about it from the consumer’s point of view. Try to think of a few dollar stores in your area. Can you picture them? Great. Ok, now… what are their names?
Still thinking?
Yeah, exactly. You may know that there’s “a” dollar store in a given location, but I’m willing to bet you’re not 100% sure which chain it is.
And if a consumer can’t remember who is who and which is which, how on earth are you going to build any kind of brand equity or loyalty?
One more example to drive this home from a slightly different angle:
The next time you’re in a grocery store, take a walk down the soda aisle. There are the big brands, and then there are the grocery store brands. There’s Dr. Pepper… and then Dr. Thunder. There’s Mountain Dew… and then Mountain Lightning. Now, this choice of name does make sense as a kind of signal to the consumer regarding what they can expect from the beverage – but it comes at a cost. These sodas will always be compared to “the originals” and will never be powerful brands. For a grocery store soda brand, that’s just fine. It’s likely not just fine for your brand.
To be clear, it’s not enough to just be different — it’s important that your brand be rooted in strategy, and that every element of it — words, look, feel, etc — are all well-considered.
But the starting point for that should be a creative brief, not a competitor’s brand.