Monday, May 14, 2007

Divided TTAB Panel Finds "EZ BED" for Air Beds Confusingly Similar to "EASYBED" for Retail Services

A divided Board panel (quite a rarity) affirmed a Section 2(d) refusal of the mark EZ BED for "air mattresses for use when camping; air beds" [BED disclaimed], finding it likely to cause confusion with the registered mark EASYBED for telephone shopping and retail store service in the field of mattresses, beds, and bedding. In re Team Worldwide Corp., Serial No. 76430485 (March 15, 2007) [not precedential].

The Board found the marks to be "very similar" in overall appearance, identical in sound, and the same in meaning. Although Registrant uses its mark as part of a telephone number, the Board found that to be irrelevant, since the EASYBED mark is registered in standard character form.

As to the goods and services, the evidence showed that air beds and traditional mattresses may be found on the same websites and sold under the same mark. Applicant TWW Corp. argued that its product is a "unique, portable, electrically blown up mattress used for travel and/or camping purposes" and is a relatively inexpensive item sold primarily at sporting goods stores and camping retailers. However, Examining Attorney Tracy Cross pointed out that Registrant’s identification of goods encompasses all types of mattresses, including Applicant’s "air beds," and is unlimited as to channels of trade.

The panel majority (Judges Kuhlke and Grendel) therefore found confusion likely.

Judge Seeherman dissented, contending that the mark EASYBED is "obviously highly suggestive" of Registrant’s services and therefore is entitled to a more limited scope of protection. Moreover, consumers will recognize a "distinctly different connotation" for the marks: easy to inflate versus easy to purchase.

As to the trade channels, consumers would not encounter Applicant’s products at Registrant’s stores because "a registrant cannot deliberately cause confusion by its own actions." [In a footnote, the majority refused to consider this "implied limitation" because in cases involving good and services, "an overlap in trade channels is found given that the type of goods in the identification would be sold in the type of store in the identification."]

Therefore, Judge Seeherman would reverse the refusal.

TTABlog comment: Even if Judge Seeherman's "implied limitation" were accepted, it would not preclude confusion, since a purchaser might still believe there is a source connection between an EZ BED purchased at one location or on-line, and a retail store called EASYBED, selling other beds products.

Text Copyright John L. Welch 2007.


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