Monday, June 25, 2007

CAFC Finds "CHI" Marks Confusingly Similar for Electric Massagers, Reverses TTAB

In a precedential ruling, the U.S. Court of Appeals for the Federal Circuit reversed a TTAB determination regarding likelihood of confusion. China Healthways Institute, Inc. v. Wang, 83 USPQ2d 1123 (Fed. Cir. 2007) [precedential]. The Board had found the mark CHI PLUS in the stylized form shown immediately below, not confusingly similar to the mark CHI & Design, shown next below, both for electrical massagers. (TTAB decision here).

The Board ruled that "the word 'chi' has a well-known meaning among those knowledgeable about Eastern medical treatments" ... and the "chi" portion of the marks is "at least very highly suggestive, if not descriptive." Therefore, it found that "the marks are distinguished by their respective additional matter," and it concluded that their overall commercial impressions are not similar."

The CAFC first noted that the determination of likely confusion is a question of law based on underlying facts. Therefore, it gives plenary review to the TTAB's legal conclusions, and reviews the Board's findings of fact under the substantial evidence standard.

The CAFC asserted that "the Board concentrated its analysis on the difference between the stylized letter 'I' in Chi Institute's mark, and the word 'PLUS' in Wang's mark, and held that the marks are 'distinguished by their respective additional matter." That, the CAFC concluded, was error, because "the marks must be compared in their entirety." [TTABlog comment: which the Board did.]

"TheBoard erred in declining to give any significant weight to the similarities of the marks, particularly in light of the identity of the goods, the identity of the intended consumers, and the identity of the channels of trade. *** It is incorrect to compare marks by eliminating portions thereof and simply comparing the residue."

The CAFC pointed out that "chi" may have a meaning in Chinese traditional medicine, but it "does not mean an electric therapeutic massager." It found the word CHI to be the major component of both marks, and discounted the meaning of the word "Plus."

The CAFC also pointed out that actual confusion evidence should have been considered "to the extent that it was properly proffered." [TTABlog comment: ignoring the issue of whether it was properly proffered.] And it criticized the Board for giving little weight to Opposer's sales evidence. [TTABlog comment: which was not all that substantial].

The CAFC concluded that, viewing the marks in their entirety, confusion is likely.

TTABlog comment: If the similarity of the marks is a factual question, wasn't there substantial evidence to support the Board's finding that the mark were not similar in overall commercial impression? The Board did view the marks in their entireties, but the CAFC disagreed with the TTAB's finding in that regard, and took the opposite view. So what does that tell us about CAFC review of TTAB likelihood of confusion decisions?

Text Copyright John L. Welch 2007.


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