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[mrasks]

I posted this question on a different site and have yet to receive much of a response, so I'll turn it over to you gurus. (The company names have been changed, but are close enough that any advice for the fake ones will be relevant to the real ones).

I am about to launch a software company, but it turns out there's already a software company with a very similar name to the one I have chosen. Their company is called "Friday Software" and they have a federally registered trademark on "Friday" covering "Computer Software development."

I'd like to name my company "Friday Systems" or "FridaySys." Is this likely to be a problem? If I only every refer to my company as "FridaySys" or "Friday Systems," and not just "Friday," does that make a difference?

"Friday Software" has only been around for 18 months and, while they have announced a couple products, they do not have anything currently in the market. So there isn't an argument to be made that I'm trying to capitalize on their successful name. Both their company and mine will sell downloadable software, so it is a nationwide or international business.

While trying to choose a name, I found a lot of examples of, say, "CommonWord Software" seemingly coexisting nicely with "CommonWord Studios" and "CommonWord Consulting" etc, but I have no idea if that means it is OK or if the companies have just stayed out of each others' way thus far.

Thanks in advance for any help!

[Dazed-n-confused]

... over to you gurus. ... ...
I am about to launch a software company, but it turns out there's already a software company with a very similar name to the one I have chosen. Their company is called "Friday Software" and they have a federally registered trademark on "Friday" covering "Computer Software development."

I'd like to name my company "Friday Systems" or "FridaySys."

I'm not a guru, but I am a buttinsky who sometimes likes to play the foil as a conversation starter, especially during a rainy day too cool to go out an enjoy a real lunch.

My non-guru opinion is, you're hosed if they take notice of you.  They're registered, and would seem to have a really good argument that it is likely the consuming public would be confused by the similarity of the names, and could easily think that your FridaySys software was from Friday Software.

Not assessed (because I'm not a guru) is whether it matters that they applied for registration apparently quite some time ago (you say they are now registered, that's not instantaneous), yet still do not have product in commerce?

[JSonnabend]

Search the forums for "likelihood of confusion", read the posts, then post back here with any follow-up questions you might have.

DnC might be right, but it's hard to say on hypotheticals.

- Jeff

[mrasks]

Search the forums for "likelihood of confusion", read the posts, then post back here with any follow-up questions you might have.

I'm familiar with the concept of likelihood of confusion but I'm not sure how it impacts the use of common words as marks. While I get the argument that "X Systems" could be perceived to fail the likelihood of confusion test against "X Software" (where X is an common, non-industry related word like "Friday"), I don't know if that overcomes the fact that there is a difference ("Software" vs "Systems") and X is a common word. As mentioned, when I was trying to come up with a name I found many examples of "X Software" seemingly coexisting with "X Systems", but maybe this is just because neither party is litigious by nature and not that there isn't any potential infringement going on. Any insight there?

I know you aren't offering true legal advice, but your opinions are much more informed than my own. Common sense is telling me to just change the name now and avoid the potential headache, but if there's no legitimate legal concern I'd prefer to stick with this name. Naming a company turned out not to be the fun experience I was expecting

[JSonnabend]

Branding -- the process of "naming" something -- is often a headache.  I have a family member who has been on the creative side of branding for several decades.  He commands big bucks for his expertise.

Your common sense, applied with a proper understanding of the legal basics, will take you a long way.

On the substance of your post, I am not sure I understand what you mean by "common words"?  "Common words" like what, like "Apple", "Champion" or "General Motors"?  The arbitrary use of "common words" is highly distinctive.

The bigger issue is that words like "systems" or "software" are merely descriptive, if not downright generic, so the remaining elements of your mark carry the bulk of whatever distinctiveness your mark has.

- Jeff

[mrasks]

Thanks for the responses. I think I was suffering from some wishful thinking that the similarity in names would be trumped by...something else that I can't quite nail down. I'll use a different name instead.

This is a fantastic board, by the way. It is great to get a quick sanity check from people who know what they are talking about...even reading all the right books/sites only gets you so far when it comes down to your specific question.