Commerce is a moving stream. There are a series of businesses opening all the time, all over the place, doing a variety of things. Some of these businesses will thrive. Unfortunately, many will fail. The saddest tale is the business that will fail for a foreseeable reason.

Mochi #icecream is a sweet, wonderful goo made from #mochi rice. There is an ice cream store in New York City named Mochidoki that specializes in mochi ice cream. This store first opened in 2015 and has multiple locations. Obviously the “Mochi” part of their name is descriptive, but they created a new term by combining mochi with the phrase okay-dokey.

Mochi is more than an ice cream ingredient. Last year a new store opened in New York City that sells #donuts made of mochi rice. The owners of this shop drew from their Italian heritage and named their store Mochi Dolci.

Mochidoki has sued Mochi Dolci for #trademark#infringement. The suit alleges that the public is likely to be confused by the two stores, and/or think there is some connection between the stores.

The owner of Mochi Dolci strongly denies this. He insists that “there is no phonetic or visual similarity between Mochi Dolci and their trademark.” He’s saying the right words, but is he right?

The test for trademark infringement is likelihood of confusion. This test has many parts, but primarily it is whether or not the brands are similar and whether the goods sold under each brand are related.

In this case, I agree that the brands are not identical, however, I do not agree that they are not similar. They at least give a similar commercial impression.

The goods are also related but not identical. Both ice cream and donuts are a sweet treat that people often buy as a quick snack or reward during the day.

I think Mochidoki will win this battle. This likely means that Mochi Dolci will need to rebrand, which could be the kiss of death for a new business. If the owner of Mochi Dolci had come to me early on, I would have advised him of this risk, and would have suggested that he started his business under a different name. Also, since he is in the food and beverage industry, the search would have cost him only $250.

Let this be a warning. Searching your name before you open your business can be one of the most valuable steps you take early on. I offer the service for $275, and I am providing this at a discount for anyone in the #foodandbeverage industry. Please arrange a free consultation with me to discuss this: https://lnkd.in/gzCeVivq