Thursday, September 15, 2005

"LOVE" No Passport to TTAB 2(d) Happiness

All you need is love? It ain't necessarily so. Fits Corporation learned that painful lesson in its failed attempt at reversing a PTO Section 2(d) refusal of the mark LOVE PASSPORT for cosmetics and toiletries, including perfumes and cologne. The Board found the applied-for mark confusingly similar to the registered mark PASSPORT for "perfume and cologne." In re Fits Corporation KK, Serial No. 76501790 (August 24, 2005) [not citable].

Examining Attorney Brian J. Pino contended that "the wording LOVE does not distract from the more dominant wording PASSPORT when considering the general commercial impression of the respective marks." Applicant Fits, on the other hand, maintained that the marks do not have the same connotation:

"[T]he composite 'love passport' might inspire one to think of a journey toward happiness, love or fulfillment. The is different from the word 'passport' alone, which simply has a utilitarian concept and meaning and would not generally be linked together with the word 'love,' as is the case in the instant composition."

The Board did not love Applicant's argument; instead it embraced the PTO's position, offering a wordy and unconvincing dissertation on the significance of love in this context. First, it noted the dictionary definition of passport as "something that assures the achievement of something else: Hard work is often a passport to success."

"In the marks, the term 'passport' would likely have the same meaning, i.e., 'something that assures the achievement of something else.' The 'something else' in applicant's case is explicitly identified as 'love.'"

Applicant Fits asserted that "love" is a strong and dominant word, particularly since it is the first word in Applicant's mark. The Board was not attracted by that argument:

"'Perfume' is a 'substance, extract, or preparation for diffusing or imparting an agreeable or attractive smell.' *** Obviously, perfume as an attractive scent can be used to appeal to members of the opposite sex for the purpose of romance or love. The use of 'Love' on such a product would hardly seem unusual."

The Board therefore concluded that LOVE PASSPORT and PASSPORT would have the same connotation for perfume "because both would suggest that the perfume is a passport to love or romance."

"The term 'Passport' would be the dominant part of both marks because, in registrant's mark, it is the only term and, in applicant's mark, the additional word 'Love' merely identifies more specifically the goal or destination of the 'Passport.'"

Comparing the marks in their entireties, the Board concluded that, while the marks are not identical, they are "very similar" in meaning and connotation, and their appearance and pronunciation "would not be dissimilar." Ergo, it affirmed the Section 2(d) refusal to register.

TTABlog comment: Remember the J. Giels Band's song, "Love Stinks"? This decision brought that song to mind. I agree with Applicant that "passport" by itself has a different connotation than "love passport." The former brings to mind travel to exotic foreign lands, strange smells, and so forth. "Love passport" brings to mind, well, "love." The "passport" portion suggests that the perfume or cologne will be a free pass to that love. On that point, I agree with the Board.

However, I just don't see the evidence to support the Board's conclusion regarding the connotation of the mark PASSPORT. The discussion and application of the dictionary meaning of "passport" by itself is contrived and unconvincing. In my book, love conquers all.

Text Copyright John L. Welch 2005


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