Can misspellings be covered by trademark?

Question

Say you found out that the keyword "youtub" is getting millions of searches a year. It's pretty obvious that these searches are just misspellings of the company Youtube. You decide you want to try to capitalize on this misspelling by creating a "single person bathtub" product and calling it the "You Tub" and registering "theyoutub.com" domain.

Would Youtube have any sort of trademark/copyright claim on "You Tub"? Would they be able to seize your domain for squatting or similar issues?

On one hand the product is in a completely diffrent non-competing industry, there are no claims of affiliation or trying to phish or trick the user once on the page, and the brand name is relevant to the product. But on the other hand I think most people could see the goal here was to try to gain traffic that was meant for Youtube.

Answer 1

Yes, they can be. In the example given in the question, there is an additional factor which is that the possibly-infringing company is in a different line of business, which means that it might be possible to use the exact same name without infringing trademark. For example, there are Dove soap and Dove chocolate. (This possibility is probably more remote with a distinctive, novel name such as YouTube.)

Trademark protection is supposed to prevent others from confusing consumers. For example, if the graphic design or other branding of the hypothetical youtub were sufficiently similar to that of YouTube that consumers might actually think that YouTube had branched out into the plumbing fixtures industry, then a court would likely find trademark infringement. (Such elements are often protected trademarks in their own right, of course, independent of the world mark; for example, UPS has trademarked "the color brown" in connection with package delivery services.)

If a company started using the youtub brand to host and serve digitized video recordings, a finding of infringement is more likely still, even in the absence of other similarities. This would be especially true if it appeared that the name had been chosen explicitly to draw customers from the YouTube site, and that would probably be fairly easy to demonstrate in court.