Tuesday, August 23, 2005

Finding Bibs and Footwear Related, TTAB Gives "BABY'S FIRST" Applicant a Section 2(d) Spanking

Like a resolute parent reining in a ranting toddler, the Board turned a deaf ear to Elegant Headwear's appeal from a Section 2(d) refusal to register the mark BABY'S FIRST for "baby bibs not made of paper" [BABY's disclaimed]. The Board found the mark likely to cause confusion with the identical mark registered for "infant's footwear" [also with BABY's disclaimed]. In re Elegant Headwear Co., Serial No. 76536426 (August 10, 2005) [not citable].

Applicant's specimen of use
(Click on drawing for larger view)

Of course, because the marks are identical, the goods need not be as closely related to support a finding of likely confusion. Still, the Board had to strain to find the necessary relationship here.

The Examining Attorney submitted website pages displaying "babies shoes and bibs sold on the same page" [There is no indication, however, that these items came from the same manufacturer or were offered under the same mark], and three third-party registrations providing "some suggestion that entities have registered a common mark for baby bibs and infants' footwear." [Mucky Duck to the rescue, again].

Evidently recognizing the weakness of that evidence, the Board triumphantly seized upon Applicant' own specimen of use [shown above]:

"More importantly, we observe that applicant's specimen of record for its baby bibs contains the wording 'Headwrap and Ballet Slipper Set' and 'SIZE: 0-3 Months.' Ballet slippers are a type of footwear and, thus, applicant's own specimen indicates that it is also the source of infants' footwear."

Noting that the cited websites at least show that these goods travel in the same channels of trade, and pointing out that these are relatively inexpensive items, the Board concluded that confusion is likely.

The TTABib

TTABlog comment: Did the PTO meet its burden in this case? If bibs and footwear really are "related" for purposes of a Section 2(d) analysis, couldn't something more convincing be found on the Internet? Is there not one company offering both products under the same mark?

"Baby's First" is not the most distinctive phrase in the world, and it may not warrant the broadest scope of protection. Surely, Applicant could have done a better job in pointing that out.

Text Copyright John L. Welch 2005.


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