Phonetic trade marks
It has become very popular to use phonetic trade marks which although look different to common words are visually very different.
A prime example of this is ‘Kommunikation’ which phonetically we know is pronounced the same as ‘Communication’. These are often used to distinguish their mark from other brands while not being descriptive of their goods and services.
When an examiner considers the mark the appearance as well as the sound will be given weight. If the mark applied for is distinctive to the eye from first impressions then it cannot be void of distinctive character.
A mark that is a misspelling of a descriptive mark but has visual distinctiveness should not necessarily be denied trade mark protection despite being of a descriptive nature.
Where the mark applied for will have a less distinctive misspelling which the average consumer will not notice on first impression, the mark is unlikely to be registered. For example the mark ‘Milennium’ is unlikely to be registered as the average consumer will not notice on first impression that there are two L’s in Millenium.
Where words are often used in speech but very rarely in written communication, the average consumer will not know if there is a correct spelling of the word. ‘Cuppa’ is a prime example of this. Used when asking if someone would like a cup of tea, the spelling will differ between people as it is rarely seen on paper. Therefore a mark such as this is unlikely to be registered.
Similarly a word that uses the American spelling rather than the English equivalent will not be distinctive as the goods or services themselves will be thought to have originated from America and not the UK.
Misspellings that are commonly used in the course of trade are unlikely to be considered distinctive. ‘XTRA’ for example is commonly used instead of Extra. These are not considered distinctive and therefore will not be registered alone. If however they are added to the end of a mark like ‘Fire Xtra’ it is likely to be accepted as distinctive.
Phonetic marks can be a tricky matter and the registrability of the marks is not certain.