Question about trademarks?

[weiford]

okay, i posted a question before about this and did some research. the name i wanted to trademark is similar but not exactly the same to a similar company. Laughing zombie productions. would i still get sued even if the last part of the name is different *which my idea is*. for example. would it be illegal to fill in a patent for Laughing Zombie INC despite the fact that laughing zombie is still in the title. also as far as i can tell i cannot find laughing zombie productions trademarked anywhere. so here is basically what i want to know
1. would it be legal to have a name like laughing zombie inc, when laughing zombie productions exists.
2. what is an australian goverment site where i can look up trademarks.
3. if it is illegal to have a name that similar, what if you cant find a trademark for that company.

ty so much for your help

[toryn34]

I can only answer for the US as I don't have a lot of experience in trademark law in other jurisdictions. In the U.S., a trademark basically grants rights to a trademark not only for the listed trademark, but also for other trademark that is "confusingly similar." In other words, people generally can't use trademarks that are likely to lead consumers to believe the two entities are related, even if the trademarks aren't identical.

Trademarks are, however, considered in their entireties. That said, the more descriptive the words in a trademark are of the goods/services, the less weight they are given. So words such as productions or INC are likely to get virtually no weight, which means that the court would likely be considering basically "Laughing Zombie" against "Laughing Zombie." Numerous other considerations can be evaluated, but the similarity of the goods/services of the two entities is a major focus. If one has "Laughing Zombie" used for film studios, while the other has "Laughing Zombie" for breakfast cereal, then there may not be a problem. But if the second company uses "Laughing Zombie" for a television production company, then it's likely that the two names would be too similar.

So, for your specific answers:
1. Maybe, but I would make sure that the goods/services of the two companies are very, very different (Although if the marks are used in entirely separate companies, you can potentially be okay as well).
2. http://pericles.ipaustralia.gov.au/atmoss/falcon.application_start
3. In at least the US, a trademark right can arise just by using the trademark, and a registered trademark isn't always needed. So it's possible that protection can exist even without a specific trademark registration.