44.5.131    DISTINGUISHABLE ON/IN THE RECORD(S)

(1) The Secretary of State's role with regard to the registration of business/mark names is ministerial. If a business/mark name is distinguishable from another business/mark name, the Secretary of State is required to file it.

(2) Pursuant to Title 30, chapter 13, MCA, and Title 35, chapters 1, 2, 4, 7, 8, 10, 12, and 18, MCA, "distinguish," "distinguishable," "distinguishable on the record," and "distinguishable in the records" means that a registered business/mark name must be sufficiently distinctive from another registered business/mark name so that it does not cause confusion in an absolute or linguistic sense.

(3) The following items make a registered business/mark name distinguishable from another registered business/mark name:

(a) key words are different and do not copy a business/mark name already on record. A "key word" means any word other than articles, prepositions, conjunctions, or business name identifiers as defined in 30-13-201, MCA. For example: "Bill's Carpentry" is distinguishable from "Bill's Builders."

(b) key words are the same, but are in a different order. For example: "Yellowstone Hotel" is distinguishable from "Hotel Yellowstone."

(c) the use of geographic designations. For example: "Helena Auto Painting" is distinguishable from "Boulder Auto Painting."

(d) phonetic similarities. For example: "Maid in Montana" is distinguishable from "Made in Montana."

(e) abbreviations. For example: "Montana Ave Salon" is distinguishable from "Montana Avenue Salon."

(f) different spellings of proper names. For example: "Jayne's Boutique" is distinguishable from "Jane's Boutique."

(g) unique or improper spelling. For example: "Black Cat Designs" is distinguishable from "Black Kat Designs."

(4) The following conditions will not make a registered business/mark name distinguishable from another registered business/mark name:

(a) the use of punctuation marks. For example: "R/D Construction" and "R D Construction" are not distinguishable.

(b) the use of special characters. Special characters are non-alphabetical and non-numeric characters such as @, #, $, %, &, *, and + that can represent a word. For example: 25 % Better, Inc. and 25 Percent Better, Inc. are not distinguishable.

(c) the use of articles "a," "an," or "the." For example: "The Painted Pony" and "Painted Pony" are not distinguishable.

(d) the use of business name identifiers or their abbreviations. For example: "ABC Inc.," ''ABC Co.," and "ABC Corp." are not distinguishable.

(e) the substitution of an arabic or roman numeral for a spelled out number. For example: "3 Kings," "III Kings," and "Three Kings," are not distinguishable.

(f) the substitution of a lower case letter for a capital letter. For example: "d" and "D" are not distinguishable.

(g) the use of internet domain suffixes. For example: .com, .org, .gov, and .net are not distinguishable.

(h) contractions. For example: "Do Not Stop, Inc." is not distinguishable from "Don't Stop, Inc."

(i) variations in word endings. For example: "Betsy's Cleaners" is not distinguishable from "Betsy's Cleaning" and "ABC Transport, Inc." is not distinguishable from "ABC Transportation, Co."

(j) adding the letter "s" to make a word, including an alphabetism, plural or possessive. For example: "Jay's Market" and "Jays Market" and "RM's Co." and "RMS Co." are not distinguishable.

(k) different spacing. For example: "Cross Roads Ranch" and "Crossroads Ranch" are not distinguishable.

(5) The Secretary of State reserves the right to not register business names that are vulgar or grossly offensive.

History: 30-13-202, 35-1-1307, 35-1-1315, 35-2-1107, MCA; IMP, 30-13-202, 30-13-310, 35-1-308, 35-1-310, 35-1-311, 35-1-1031, 35-2-305, 35-2-307, 35-2-826, 35-4-206, 35-7-106, 35-8-103, 35-8-108, 35-10-703, 35-12-505, 35-18-201, MCA; NEW, 2012 MAR p. 513, Eff. 1/13/12; AMD, 2015 MAR p. 2042, Eff. 11/13/15.