Name proximity and of the same business

[sudoku]

What is the name of your state (only U.S. law)? California

How close can business names be (dealing with the same subject matter) before the they trademark infringe?
Would there be an infringement problem for the following two names
1) "empathy in justice"
2) "empathetic fairness"?

If there was already a business named and trademarked #1 would the trademark office grant a trademark for the name of business #2? Could business #1 win a claim in court on infringement?

Sorry for being cryptic with the names but I can't divulge the actual name since it's not yet trademarked and I don't want to alert my competitor that there's something they might need to contest!

Thank you.

 

[The Occultist]

One of the tests for infringement is "likelihood of confusion," which essentially asks if a reasonable person would be confused.

My opinion, for the example you gave, is that neither of those infringe on the other.

 

[divgradcurl]

One of the tests for infringement is "likelihood of confusion," which essentially asks if a reasonable person would be confused.

My opinion, for the example you gave, is that neither of those infringe on the other.

Just for the sake of completeness, this summary of the "likelihood of confusion" test really misses the mark. The test is not that simple, and is not based on a "reasonable person" test. The test is different in different states -- in the 9th Circuit, which includes California, likelihood of confusion is a 7-part test (the Sleekcraft factors):

(1) the strength of the mark; (2) proximity or relatedness of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the marketing channels used; (6) the degree of care customers are likely to exercise in purchasing the goods; (7) the defendant's intent in selecting the mark; and (8) the likelihood of expansion into other markets.

AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979)

Whether a typical consumer of the good or service in question would be confused is one of the factors (#6), but this is not a "reasonable" consumer test -- it is based on the relative sophistication of a consumer of the particular product.

 

[The Occultist]

Heh, I will absolutely defer to anything you have to say Div, and I thank you for the correction!