Is it ok to use the same app name as other, unpopular apps?

Question

I'm currently developing a webapp for language learning in the hopes of turning it into a profitable business. I've been mulling over a certain name for a while though I've looked through the google play store and chrome add-on store and both have apps named virtually the same thing. They're all still in the same domain as mine (language learning with emphasis on vocab retention), but none of them have been updated in the last few years and they all have very few users/downloads. None of them seem to be trademarked.

If I ended up using this name and it takes off, should I be concerned about any of this?

Answer 1

It's probably not a good idea. You won't get trademark protection if your name is already being used by several others in the same market. You wouldn't really get protection anyway if your name was something obvious like "Language Learning App" that just describes what the app does.

But you might be able to get away with it. The things I mentioned cut both ways; it will be difficult for the existing apps to claim trademark if they allowed each other's existence this whole time. Also, using "passing off" instead of trademark requires that the plaintiff prove a loss of goodwill. With few users/downloads, this will be quite hard for them to establish. To be slightly safer, you may want to make sure your product is easily distinguishable from the others - for example, by having a distinctive icon.

Answer 2

Yes, you should be concerned

Trademarks exist at common law without needing to be registered. Worst case scenario, you are successful and they sue you for “passing off” and get all your profits.

Answer 3

The more fanciful the name is, the less likely it is that you step on anyone’s toes, and the more likely that you have protection.

Call it “Learn Japanese with Naraitai” and you are not copying anyone’s name, and you would have very strong protection if someone else used it.