Monday, February 28, 2005

TTAB Says Palindromes Make Stronger Marks

Most everyone's favorite palindrome is "A MAN, A PLAN, A CANAL - PANAMA," but did you ever think it would make a good trademark? The TTAB (or at least one panel thereof) has embraced the idea that palindromes make stronger marks!

Panama Canal

In In re Independent Pharmaceutica AB, Serial No. 78160932 (January 25, 2005) [not citable], the Board affirmed a Section 2(d) refusal to register the mark NICCIN for "vaccines and anti-smoking pharmaceutical preparations in the form of tablets," finding the mark likely to cause confusion with the mark NICOCIN for "pharmaceutical preparations, namely, medications for suppressing, reducing, or eliminating smoking and the urge to smoke."

In analyzing the marks, the Board panel found persuasive the Examining Attorney's argument that palindromes make stronger marks. Examining Attorney John Dwyer wrote in the PTO's brief:

"The act on the part of a potential purchaser of consciously recognizing that the registrant's mark is a palindrome adds a memorable creative aspect to the registrant's mark that further strengthens it as a mark. That is, the registrant's coined mark is made even stronger because it is an easily remembered palindrome."

Moreover, the Board also liked the following argument of the Examining Attorney that because both marks at issue are palindromes, confusion is more likely:

"Potential purchasers of smoking cessation pharmaceutical preparations, upon encountering two nearly identical marks, both being palindromes, would be more likely to believe that both products originate from the same source, and that the one letter difference is intended to differentiate betweens [sic] aspects of the products, such as that one is the newer version or that the potency is different between the two."

Sorry, but Judge Welch isn't buying. For one thing, I didn't even notice that NICOCIN is a palindrome -- maybe because I would pronounce the first "c" with a "k" sound (from "nicotine"), and the second with an "s" sound. (NIK-O-KIN just doesn't sound right). Nor did I pay any attention to the fact that applicant's mark is also a palindrome.

Where, may I ask, is the support for the Examining Attorney's assertion that consumers consciously recognize or more easily remember palindromes? That may be true for a clever phrase like “A man, a plan, a canal -- Panama,” but is it true for a single palindromic word? And what is the basis for the contention that, because two marks are palindromes, they would more likely cause confusion? No cases are cited. No scientific studies. Not even a single blog posting!

Moreover, what is the support for the Examining Attorney's assertion that consumers would be likely to believe that the one letter difference in the marks would be perceived as indicating that one product is a newer or different version of the other? A better argument would seem to be that consumers likely wouldn't notice the extra letter, than that they would draw the PTO's conclusion.

Actually, I don't have a quarrel with the Board's ultimate decision, but its acceptance of these particular PTO arguments without any support is a bit unnerving.

By the way, what about "MADAM, I'M ADAM" for a men's cologne?

P.S. Of the Top 100 Brands of 2003, according to Business Week, not a single one was a palindrome.

Text ©John L. Welch 2005. All Rights Reserved.


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