TTAB Finds "THE CHIPPER TRAVEL SERIES" and "CHIPPER CHAT" Confusingly Similar for Children's Recordings and Board Games
Chipper the worldly traveling squirrel ran into a serious roadblock at the PTO. The Board affirmed a refusal to register the mark THE CHIPPER TRAVEL SERIES for recordings featuring stories for children and for children's books ["TRAVEL SERIES" disclaimed], finding the mark likely to cause confusion with the registered mark CHIPPER CHAT for "teaching and motivational aids in the nature of a game that consists of magnetic chips, magnetic wand, and game boards for use by the general public, public and private teachers, [and] health professionals or therapists." In re Rach, Serial No. 78811345 (October 17, 2007) [not precedential].
Applicant Stephanie Rach conceded that board games and books, CD's, and DVD's are related goods. Therefore, the Board focused on the marks.
Applicant argued that the mark CHIPPER CHAT suggests a board game played with chips and involving chatting or talking. On the other hand, she contended, her mark suggests a group of recordings featuring "the travels of someone named 'CHIPPER,' in this case a squirrel." Ergo, the marks are not confusingly similar, she urged.
Examining Attorney Mark Rademacher, however, maintained that in both marks the word "chipper" primarily suggests cheerfulness or liveliness. The fact that CHIPPER may be the name of a squirrel does not alter that meaning. "Squirrels are generally thought of as having these traits."
The Board found the issue to be a "close one," but it noted that it would be improper to limit or restrict the goods in the opposed application to goods "which have as their central character or subject matter a globe-trotting squirrel named 'Chipper.' Rather, such goods must at the very least be regarded as including books and recordings on a wide variety of travel topics." Similarly, the registered goods must be considered as "encompassing, inter alia, a game which involves travel-related themes."
Website evidence showed "the same character name mark [being] used in connection with games for children as well as children's books (including sound books), videos and DVD's." Thus even consumers familiar with the squirrel character might assume that registrant's motivational games marketed under the CHIPPER CHAT brand name feature that same character and hence emanate from the same source.
Resolving any doubt in favor of the registrant, the Board affirmed the Section 2(d) refusal.
TTABlog comment: Did the the Board give too little weight to the double meaning of "chipper" in registrant's goods -- i.e., it does refer to the use of "chips" in playing the game. Isn't this a case where the applied-for mark should be passed to publication so that the registrant, if concerned, may oppose? Or would that be an abdication by the Board of its responsibility?
Text Copyright John L. Welch 2007.