Friday, March 09, 2007

Precedential No. 19: TTAB Finds "BODYMAN" Cartoon Mark Not Confusingly Similar to "BOD MAN" for Men's Fragrances

The Board dismissed a Section 2(d) opposition to registration of the mark BM BODYMAN & Design (shown below) for an animated television series, finding the mark not likely to cause confusion with the marks BOD and and BOD MAN ("BOD" disclaimed) used and registered for men's fragrances. Parfums de Coeur, Ltd. v. Lazarus, 83 USPQ2d 1012 (TTAB 2007) [precedential].

Applicant Lory Lazarus envisioned a character called "Bodyman" as a superhero having only a torso, with no arms, legs, or head. "He sees with his nipples, which are drawn as eyes; he speaks through his navel; and he captures criminals by projecting his intestines, which can act as a rope or lasso."

The Board, in its mandatory romp through the du Pont factors, first considered the marks. Although Opposer argued that BODYMAN is the dominant part of Applicant's mark, the Board disagreed: "the design is very noticeable and has the effect of catching the viewer's eye and engaging the viewer before the viewer looks at the word BODYMAN." Although the marks are similar in pronunciation, there are differences in connotation: in the opposed mark, BODYMAN refers to the "person" depicted in the design element, whereas the slang term BOD refers to a "great physical specimen."

Because of the differences in appearance and connotation, the commercial impressions made by the marks also differ. Applicant's conveys the impression of a grotesque superhero, while Opposer's suggest a great physique. Opposer's advertisements depicting a male figure with a "ripped" physique are quite different from the 'grotesque, albeit muscular, torso" of the opposed mark.

In sum, the Board found that the marks, compared in their entireties, "are different," and that this factor favors Applicant.

Turning to the goods and services, they clearly are neither competitive nor overlapping. Opposer argued, however, that "titles of television programs are used as trademarks for merchandising properties," citing the GILLIGAN'S ISLAND case (Turner Entertainment Co. v. Nelson, 38 USPQ2d 1942 (TTAB 1996))[confusion likely between GILLIGAN'S ISLAND for suntan oil and related products, and the same mark for a television series]. There, however, the GILLIGAN'S ISLAND mark was famous and had been licensed, the marks were identical, and there was an "obvious association" between the goods and the television series.

Here it is significant that Opposer's product entered the market first, because consumers are not likely to assume that a mark used for men's fragrances has been expanded to identify a television series. Moreover, there was no evidence that marks for entertainment services are licensed for use on fragrance products.

"Certainly there is nothing in the record to suggest a connection between a superhero consisting of a torso and men's fragrances, such that a consumer would be likely to assume a connection between a television series about such a character and men's fragrance products."

This factor, too, favored Applicant Lazarus.

The channels of trade are clearly different, and this third du Pont factor favored Applicant. The fact that Opposer's fragrances are advertised on television did not tip this factor toward Opposer, because there is no basis to believe that viewers would make a connection between a fragrance and "a television series about a superhero that is a torso."

The parties' goods and services must be deemed to be sold or offered to the general public, and these consumers would not "have a particular sophistication regarding them." This factor favored Opposer.

Opposer's sales and advertising figures were not high enough to establish Opposer's marks as famous; and the suggestiveness of the term BOD and the descriptiveness of MAN undermined any argument that the marks were strong.

Finally, the lack of actual confusion was considered as neutral.

Considering all the relevant du Pont factors, the Board found that Opposer had failed to prove confusion likely, and it therefore dismissed the opposition.

TTABlog comment: Somehow I think the BODYMAN series will fail to achieve the popularity of Gilligan's Island. That's just a hunch.

Text Copyright John L. Welch 2007.


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