Monday, November 19, 2007

"SPRITE QUENCH" Not Confusingly Similar to "QUENCH" for Beverages, Says TTAB

Finding the word "quench" to be a weak formative in view of nine third-party registrations (in addition to the registrations cited by the Examining Attorney), the Board reversed a Section 2(d) refusal to register SPRITE QUENCH for various beverages, finding the mark not likely to cause confusion with the registered marks QUENCH (in various design forms), DIET QUENCH, and QWENCH for soft drinks. In re The Coca-Cola Co., Serial No. 78449413 (October 29, 2006) [not precedential].

In support of its argument that "quench" is a weak term when used in connection with beverages, Applicant submitted dictionary definitions of "quench," nine third-party registration for marks including the word QUENCH for beverages and syrups, a trademark search report listing 54 state registrations for marks incorporating the words "quench" or "quencher" for beverages, and 156 LEXIS/NEXIS articles using the term "quench" as a suggestive or descriptive term for beverages.

The Board found that the marks are "more dissimilar than similar."

"In terms of overall commercial impression, we find that although the word 'quench' is the dominant element in the registrants' marks, in applicant's mark it contributes relatively less to the commercial impression than applicant's arbitrary SPRITE portion of the mark."

The Board noted that usually "when a mark of one party completely encompasses that of another on related or identical goods there will be a likelihood of confusion." However, where the common elements are descriptive or suggestive, there may be no likelihood of confusion. Here, the Board ruled that "consumers will be able to distinguish among the various 'Quench' marks by looking to other elements of the marks.

Text Copyright John L. Welch 2007.


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