Friday, March 25, 2005

Pepperdine Wins Left Coast TTAB Battle Over Wave Logos

Pepperdine University, whose location in Malibu, California accounts for its choice of the awful name "Waves" for its athletic teams, had little difficulty in warding off a Section 2(d) attack on its wave logo mark shown immediately below, for various clothing items. Pacific Sunwear of California, Inc. v. Pepperdine University, Opposition No. 91159978 (March 8, 2005) [not citable]

Fellow left coast denizen Pacific Sunwear claimed likelihood of confusion with three of its marks, shown here, for like clothing items:

The Board cut right to the chase, ruling on summary judgment that "the single DuPont factor of the dissimilarity of the marks in their entireties outweighs any other relevant factors and is dispositive." The Board construed "the remaining relevant presented DuPont factors" in Pacific Sun's favor, including the "fame" factor. To the extent that Pacific Sun "may have raised" an issue of material fact as to Pepperdine's intent -- Pacific Sun contended that Pepperdine knew of its marks -- "this fact is not material to the Board's decision" in view of the dissimilarities in the marks.

Noting that when designs are involved, a subjective "eyeball" test is applied to determine similarity of appearance, the Board found that "although the designs in question may be characterized as waves, they are vastly different visually." The Board particularly noted the "surfboard element" that is "readily apparent" in Pacific Sun's designs, but absent from Pepperdine's mark.

As to the inclusion of the term KIRRA in two of Pacific Sun's marks, this "further serves to emphasize the differences in the involved marks."

Therefore, the Board granted Pepperdine's summary judgment motion, giving Pacific Sun the evil eyeball as it waved goodbye to this left coast logo loser.

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


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