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The answer to this question will depend on whether or not the first band has registered their name as a trademark or not and whether they are famous. If they have registered their name with the trademark office and are complying with the rules of holding on to their trademark then you cannot use the name even if spelled differently. If you choose to use the name and it has not been previously registered, the original band (if they are famous) can still sue you and keep you from using the name. The trademark office will have to decide who used the name first, who is more associated with the name in the view of the general public (aka the famous band) and so forth. So you could end up being forced to change your name and confuse potential fans.

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