Precedential No. 17: Finding the Marks Entirely Different, TTAB Grants Judgment on the Pleadings in 2(d) Opposition
Well here's a seldom-used shortcut to victory: a motion for judgment on the pleadings under FRCP 12(c). Applicant P.A.C. Trading Group sought to register the mark PAC BOOSTER THE PERFECT SOUND for car and home audio and video equipment ["BOOSTER THE PERFECT SOUND" disclaimed]. Ava Enterprises opposed, claiming that Applicant's mark is likely to cause confusion with its registered mark BOSS for automobile audio components. The Board found the first du Pont factor to be dispositive and, despite the overlap in the parties' goods, that a likelihood of confusion cannot exist as a matter of law. Therefore it granted the motion and dismissed the opposition. Ava Enterprises Inc. v. P.A.C. Trading Group, Inc., 86 USPQ2d 1659 (TTAB 2008) [precedential].
In response to Applicant's assertion that the differences in the marks make confusion impossible, Opposer Ava lamely argued that the marks "are confusingly similar in that the term BOOSTER contained in applicant's mark is nearly identical to the term BOSS in opposer's mark."
As required under FRCP 12(c), the Board accepted as true "all well pleaded factual allegations of the non-moving party," while those allegations of the movant that are denied or taken as denied are deemed false. Judgment on the pleadings may be granted only if there is no genuine issue of material fact in dispute.
The Board took judicial notice that the words BOOSTER and BOSS "are completely different in meaning." Moreover, "no matter what meaning, if any, purchasers might ascribe to the word 'boss,' the connotation of opposer's mark cannot be found similar to that of applicant's mark."
"Opposer’s suggestion in its responsive brief that the marks are nonetheless confusingly similar because the terms BOSS and BOOSTER both begin with the letter 'B,' share the same letters 'O' and 'S,' and sound similar is not persuasive inasmuch as it ignores the fact that the words, as well as the marks as a whole, are entirely different."
The Board therefore showed who's boss by pulling the plug on this unsound opposition.
Text Copyright John L. Welch 2008.