Thursday, July 12, 2007

TTAB Finds "UNDERDOG" Design Marks Too Dissimilar, Dismisses 2(d) Opposition

Well, here's one that the underdog was bound to win. Applicant Jean-Claude Lewis, appearing pro se [at the TTAB, that indeed is an underdog], fended off an opposition to his application to register the mark BENEATH THE UNDERDOG.COM & Design for clothing. Opposer Classic Media, Inc. claimed likely confusion with its UNDERDOG marks used for more than 40 years for a television cartoon character and for various goods, including clothing. However, Classic Media's bark proved to be worse than its bite. Classic Media, Inc. v. Lewis, Opposition No. 91159034 (July 6, 2007) [not precedential].

Applicant Lewis admitted that Opposer is the owner of "a muttly-looking-hound-dog superhero named Underdog," and that Opposer's often employed "drawings of Underdog flying." Applicant also did not deny Opposer's ownership of its six pleaded registrations, but denied the allegations regarding the "long merchandising history" of the Underdog character, including use of the mark on clothing.

Opposer failed to make properly of record five of its six registrations (it submitted only plain copies), but it did manage to make of record its registration for the design shown immediately above, for "toys." Nor did Opposer offer proof of any common law rights prior to Applicant's filing date.

Thus the issue of likelihood of confusion hinged primarily on the sole pleaded registration. The Board, however, found that Opposer's design "looks nothing like the dog design in applicant's mark, much less such mark when considered as a whole, including the wording 'BENEATH THE UNDERDOG.COM.'"

Moreover, even if the marks were considered to be similar, and given Applicant's admission that Opposer had used the Underdog design mark for an entertainment property, "there is no proof on this record that consumers would view applicant's goods as collateral products emanating from or sponsored by opposer's television entertainment property."

Accordingly, the Board dismissed the opposition.

Text Copyright John L. Welch 2007.


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