By Geetha Kandiah

Deliberately misspelling a descriptive term to create a distinctive trademark is generally ineffective and can lead to legal challenges. Trademark law evaluates the overall impression of a mark, and slight misspellings often fail to alter the perception of the term as descriptive or generic.

What is worst than the legal challenges is the negative misperception that misspelling brings forth amongst your customers, suppliers and the public at large.

In this article, we will explore why misspelling descriptive words and using them as your brand is not advisable.

Lack of Distinctiveness
Misspelled words that sound like their correctly spelled counterparts are often perceived as the same term. For example, “Froot” instead of “Fruit” does not change the descriptive nature of the word. As a result, such marks may be deemed merely descriptive and ineligible for trademark protection. Trademark Examiners (in most countries) do not turn a blind eye to intentional typos.

Negative Public Perception
The public may not recognize that the misspelling is a “creative output”. Instead, consumers may perceive the brand as unprofessional or careless, questioning the credibility and quality of the business. A brand that appears to lack attention to detail in its name may create doubt about the reliability of its products or services.

Case Studies Illustrating the Issue

“QUIK-PRINT”

The mark was found to be amisspelling of “quick print” and the mark was held to be descriptive of printing and photocopying services in US.

“KWIXTART” 

The mark was found to be amisspelling of “quick start” and the Courts in US held the mark to be descriptive for electric storage batteries.

“COOKINPELLETS.COM”

The mark for “processed wood fuel in the nature of pellets for use in barbecue grills,” was refused by the US Trademark Office, on the grounds that the phrase is generic.

“FirsTier”

The mark was found to be the phonetic equivalent of the phrase “first tier,” and therefore, descriptive of banking services in the US.

“SHARPIN”

The mark was also found to be the phonetic equivalent of the word  “sharpen,” and as it was to be affixed on knife blocks with built-in sharpeners, the US Trademark Office found the mark generic.

“FARMACY”

The mark was found to be the phonetic equivalent of the phrase “first tier,” and therefore, descriptive of pharmaceutical services in the US.

“Artisan” vs. “Artizen”

In this case, the applicant sought to register “Artizen” for essential oils and related products. The US Trademark Office initially refused registration, deeming “Artizen” merely descriptive as it is a phonetic misspelling of “artisan,” which describes a characteristic of the goods. However, in this case, the applicant successfully argued that “Artizen” had a double entendre, where the suffix “ZEN” refers to a calm, relaxed state of mind, leading to the acceptance of the mark.

“MUFFUN”

The US Trademark Office found the mark suggestive for “baked mini muffins sold frozen or fresh” and allowed the trademark registration. Here, they stated, “in view of the nature of applicant’s inventive and somewhat stylized mark, being an obvious play on the word “muffin” and the word “fun”, we believe that the meaning or commercial impression of applicant’s mark will be more than simply of the word “muffins”.

Conclusion

Attempting to secure trademark protection by slightly misspelling a descriptive or generic term is generally ineffective and can lead to legal complications. Additionally, consumers may question the credibility of a brand that appears to have a spelling error in its name. For a trademark to be registrable and enforceable, it must be inherently distinctive or have acquired distinctiveness through extensive use. From the ARTIZEN and MUFFUN trademark examples provided above, creative and suggestive marks which have double entrende are also registrable. On our end, we advise clients to have fun while coining their trademark -remember, a mark that is not descriptive does not stand out amongst the other traders in the industry. Craft a mark that is unique and be the sparkling gem in the sea of sameness.

If you need any assistance or would like to learn more about Trademark, Patent and other IP Rights, Franchising, and Translation, drop us a line at kass@kass.asia.