Rapper Name Legal Question?

[jolie]

If I come up with a rapper name that sounds like a name that is already trademarked (I didn't know it was trademarked until I just looked it up), but it is spelled differently, will I legally be able the use it?

BTW the person who had the name is already dead and they have nothing to do with the music industry. So I figure it shouldn't confuse people or interfere with the courts because they had nothing to do with music. Thanks for your help!

Additional Details:
I also just typed my rapper name into http://www.uspto.gov/ (which is the US Patent and Trademark Office site). And it could not find anything for my spelling of my name. I don't want to say their name because I don't want to give it away! But I can tell you they are a popular author.

[siwili]

In the U.S., trademark infringement is determined by "likelihood of confusion" (i.e., whether a reasonable observer might think two marks are related). Under this test, the spellings do not have to be similar.

For example, Microsoft is a well known trademark. What if I came out with a software named "Microsafe" or "Micro Software"? Although these are not identical, I would strongly argue that there is likelihood of confusion.

Keep in mind, however, that a trademark, in and of itself, is not a monopoly of a name. In most cases, a trademark will have limited reach and may be utilized in by different owners in different channels of trade. For example, Delta is a separate trademark for airlines, water faucets, and tools.

Keep in mind as well that just because someone is dead does not mean the trademarks are not enforceable (see e.g., Elvis).

Since there is likely a huge investment in choosing a performing name (e.g., marketing materials, album covers, etc.), you might consider speaking with a trademark or entertainment attorney to get a better grasp of the potential legal issues.