If I understand properly, you have not submitted your trademark application yet, you have only searched if there are any similar marks registered. If you proceed and file your application the examining attorney would probably consider that your mark is confusingly similar to Crowded Teeth and deny registration.
It would be good to discuss the matter with an attorney and see if it is possible to make any changes to your trademark application or to your brand in order to avoid confusion with similar marks.
The answer to this question is for general purposes only and does not form an attorney-client relationship.
The way I read your question, you've filed a federal trademark application and have received an official Action citing a registration for CROWDED TEETH for the same kind of clothing as you propose to use the term CRKD TEETH as a trademark for.
But you now switch the question away from whether you can register the trademark to whether you can be successfully sued for infringement if you use the term on such goods.
The legal test of trademark infringement under federal law is not that the marks be identical but rather whether there is a LIKELIHOOD OF CONFUSION as to the source or sponsorship of the goods by some of the prospective or actual customers of either. How do you think this test would apply to the two terms you cite?
This posting is intended for general education and isn't "legal advice." It doesn't create or evidence an attorney-client relationship. You are encouraged to engage an attorney in the pertinent jurisdiction for confidential legal advice on matters of any importance. -Gerry J. Elman, J.D. Elman Technology Law, P.C. Swarthmore, PA www.elman.com
Trademark law is all about preventing a likelihood of confusion. It sounds as though you filed a trademark application, and that the trademark office has indicated there is a registered trademark which is confusingly similar to the trademark you seek protection for. If that is the case, then it is possible for the owner of the registered trademark to sue you to prevent you from using a confusingly similar name. I recommend that you seek the counsel of a trademark attorney to review the specific facts of this case.
The answer to this question is for informational purposes only and does not form an attorney-client relationship.
You should not give such specifics here on Avvo. We can look up and find all about you. We might be your adversary, although I doubt any of us are.
There are a number of factors that go into an analysis for likelihood of confusion. According to the US Patent & Trademark Office [TMEP 1207.01] the two most significant are usually similarity of the mark and similarity of the goods.
As to similarity of the marks, you have the equivalent of CROOKED TEETH and the prior mark is CROWDED TEETH and the goods are the same. So, the only difference in the marks seems to be two letters "WD" vs "OK" and the marks are directed to two problems faced by orthodontists.
The issue is not whether the marks are the same or the goods are the same, but whether consumers will be confused into thinking the goods bearing the two marks come from the same source.
Yes, you could be sued. If I were attorney for CROWDED TEETH, you would be in my crosshairs as I would have a USPTO determination of likelihood of confusion and that will be very persuasive to a judge or jury. Trademark examing attorneys of the USPTO are widely respected as some of the best experts in the world on the issue of likelihood of confusion, and few judges at the trial level will see fit to disagree with them, although that is certainly a judge's prerogative.
You probably need to be thinking of dropping your brand and getting something more trouble free and clear. After all, you want to protect your name broadly not whittle down to nothing the coverage during a fight to even get it.
For example (without checking) wouldn't BENT TEETH or TOOTHLESS TEETH be just as humorous and yet clear of CROWDED TEETH, particularly if your product is some sort of hillbilly teeth.
Now, I don't believe you when you say you "submitted the trademark application" for CRKD TEETH. I checked TESS and there is no such application. I think you had a trademark search done and CROWDED TEETH came up as a possible conflict. I do see a registration and application for that. http://tsdr.uspto.gov/documentviewer?caseId=sn85897728&docId=SPE20130411070420 I take it the goods are T-shirts for both you and them.
Bottom Line: Time to hire a lawyer or pick a new mark or do both. I strongly recommend both. In fact, you should have the lawyer assist you in the brand selection.
I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.