Mis-spelling trademark question

[breakaway]

If somebody else registered trademark where they mispelled a word, can I still use that misspelling? (it's in the same industry of "toys")....for this example let's say they spelled it "Kreature Kamp", and I made a toy action figure called "Kick-Ass Kreature", would that be okay? The reason why I'm using the "K" is not to copy, but because it looks better for the alliteration.

I searched them on google and came up with nothing. I think they are actually a toy manufacturing company as opposed to the name of an actual toy.

Also, adding to the issue, there are lots of sites on the internet that use "Kreature" with a K instead of a C. There was one site with the K spelling, but it was selling puppets, and not toys...I'm not sure if this would be okay....I didn't go through all the sites, but what if there was a toy that had that K spelling, would I be in trouble? In my defence, it doesn't seem like any of them are "popular" or "famous", and none of them have the phrase "Kick-Ass" in front of it.

Thanks for the help

 

[The Occultist]

Your question(s) makes me wonder whether or not you understand what, exactly, a trademark is; do you?

 

[quincy]

Any mark you use to identify your product, breakaway, will get its protection from your use of it in commerce.

Trademark law resolves disputes over marks - and generally the law favors the one who first used the mark (name, logo, slogan, whatever). Registering the trademark can make it easier to protect, but the mark must be used in commerce first before it can be regulated. After your first use of the mark in commerce, you then have the potential ability to prevent others from using it or ones similar, whether it is registered or not.

Trademarks used to identify a product or service can either be distinctive on their own (as a made-up or especially creative word might be) or through their use over time and the subsequent connection in consumers' minds of the trademark with the product or service. So, even a weak mark using common names, like Ben and Jerry's, can be afforded the most protection under trademark law over time because of the connection in consumers' minds with the product or service.

Registering a mark on its own (if you are even able to) will not protect it from use by others if you never use, or stop using, the mark yourself.

As for your use of a "K" for your "Kreature", it could be prevented if the company using "Kreature Kamp" finds it infringing. The possibility of it infringing is greater since both Kreature Kamp and Kick-Ass Kreature would be used on competing goods in the same market (toys). Consumers could be confused into thinking "Kick-Ass Kreature" belonged to the "Kreature Kamp" line of toys.

If you used "Kick-Ass Kreature" to describe a restaurant (although I personally would not eat there ), there might not be a problem.

It is always best when you come up with a trademark for your product that avoids similarity to any already in use. In addition, for a toy market, you would have difficulty using "Kick-Ass" with any other word - it does not provide your children's toy with a good marketing impression.

Edit to add: By the way, you misspelled misspell.