How can I trademark name?

If I release a product that's used as a domain name by another well established company and they have a trademark for a similar name (but not exact), can I still file a trademark?

• I have a supplement called "Incredible XYZs."  They have the same domain name.  They sell chocolate covered edibles of XYZ.  They have a registered trademark for a similar phrase "IncrediXYZ" but not Incredible XYZs. They're much bigger and more established than I am.  I don't want to go to court because a big legal bill would drown me. Question:  Am I within the realm of "similar use" to the point that I could be a target for a lawsuit?  If I file a trademark for "Incredible XYZs" will I still face a large risk of legal action from the bigger company.  What are the most cost effective ways of navigating this legal issue?

• Answer:

  From supplement I am assuming dietary supplement. I'd strongly advise against going for Incredible XYZ. Trademark law doesnt work on mere exactness of trademark for infringement. The test is to discern whether the two products will cause confusion for an ''unwary consumer of usual imperfect memory'' Between IncrediXYZ and Incredible XYZ there is enough similarity to cause confusion. Further your goods are slightly similar, both being edible products. Its quite easy for a consumer to believe that the well established company for XYZ chocolates has started producing dietary supplements. Thus giving you an edge at the cost of the older trademarked product. Plus, as you say they are a big, established company their trademark might also be well known. There is greater degree of protection for well known trademarks. If you go with Incredible XYZ  there is a good chance you might not be granted a trademark at all. If you continue to sell your product under an already trademarked name you might get sued for infringement. The most cost effective way is to change the name of your product and not market it under the similar name.This answer is not a substitute for professional legal advice....