Monday, December 18, 2006

Finding Spa Services and Beauty Products Related, TTAB Affirms 2(d) Refusal of "LOVEJOY"

Third-party registration evidence once again proved fatal to an applicant seeking to overcome a Section 2(d) refusal. In In re Taylor Tate, Inc., Serial No. 78463524 (December 1, 2006) [not citable], the Board found Applicant's spa services to be related to hair and skin care products, and it consequently affirmed a Section 2(d) refusal of the mark shown immediately below [DAY SPA & SHOP disclaimed] in light of the registered mark LOVJOI.

Examining Attorney Ingrid C. Eulin argued that Applicant's services and Registrant's goods are "complementary and registrant's goods could be sold along with or as part of applicant's services." Third-party registrations demonstrated that "entities have registered a single mark for both spa services and hair and/or skin care products." Applicant did not dispute the Examining Attorney's contention, and so the Board, citing In re Albert Trostel & Sons. Co., 29 USPQ2d 1783 (TTAB 1993), found the goods and services related.

As to the marks, the Board agreed with the PTO that the word LOVEJOY is dominant in Applicant's mark, and is similar in sound and appearance to LOVJOI. Applicant lamely contended that "'LOV' does not sound like 'LOVE' as the 'O' in 'LOVE' is pronounced as 'luv' (having a short 'U' sound) and the 'O' in 'LOV' has a short 'O' vowel sound ... and 'JOY' does not sound like 'JOI.'" The Board was not in love with that argument, and its response gave little joy to Applicant.

"While it is possible that LOVJOI could be pronounced differently from LOVEJOY, there is no correct pronunciation of a non-standard term."

Moreover, the Examining Attorney submitted several newspaper excerpts in which "love" is written as "lov," indicating that "consumers are accustomed to pronouncing 'lov' as 'love.'" [E.g., "As a Bears fan for life, I want Lovie Smith to go 12-4, not 4-12. Love to luv ya, Lov."]

Chicago Bears coach Lovie Smith

Finally, the Board concluded that the marks are "very similar in appearance," and as to connotation, "at a minimum, when pronounced both evoke the words LOVE and JOY." The overall commercial impression of the marks is similar, the descriptive wording and design element in Applicant's mark being insufficient to distinguish the marks.

The Board therefore affirmed the refusal to register.

TTABlog note: In Boston and environs, the term "spa services" has an entirely different meaning.

Barca's Spa
Watertown, MA
(Click on photo for larger picture)

Text and "Barca's Spa" Photograph Copyright John L. Welch 2006.


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