Wednesday, June 11, 2008

"SLURP-EZE" for Pet Bowls Confusingly Similar to "SLURPEE" for Frozen Drinks, Says TTAB

The TTAB put the kibosh on Applicant Mark D. Morrison's attempt to register the mark SLURP-EZE for "dog bowls, cat bowls, ferret bowls," finding the mark likely to cause confusion with 7-Eleven's registered SLURPEE and various SLURP marks for frozen confections and soft drinks, plastic beverage containers, clothing, candy, and bubble gum. This was something of a comeback for 7-Eleven, who about one year ago lost an opposition to registration of the mark GULPY for "portable animal water dishes and animal water containers sold empty." (TTABlogged here). 7-Eleven, Inc. v. Morrison , Opposition No. 91154687 (June 2, 2008) [not precedential].

You probably already guessed that the strength of the SLURPEE mark played an important role in the outcome of the case. The Board found that SLURPEE has received "significant public recognition and renown," and is well known. This factor, of course, "weighs heavily in opposer's favor."

The Board was quick to distinguish this case from the GULPY decision. There, the Board found that Opposer's BIG GULP mark "has a very high degree of public recognition and renown," but that the opposed mark GULPY "was not virtually identical to opposer's famous mark." Furthermore, the Board noted, "Gulp is a suggestive designation in the fountain drink field (83 USPQ2d at 1721), while the term SLURPEE is arbitrary or at most only slightly suggestive." [TTABlog comment: the Board is slicing the baloney pretty thin here.]

The Board found "virtually no difference between the marks." It concluded that "the similarities of the marks' sound, appearance, meaning, and commercial impression outweigh any potential differences."

The most difficult issue was, needless to say, the relatedness of the goods. The Board recognized that Opposer has never sold a pet food product under the SLURPEE mark, but it does sell "significant quantities of pet food and cat litter." Opposer offered evidence that "beverage containers for humans and bowls for pets are offered under the same mark or slogan." And it submitted "some registrations" covering pet bowls and mugs, cups, or glasses. Opposer's survey evidence was entitled to "some weight." Although not extensive, this evidence was enough to "suggest that applicant's pet bowls and opposer's soft drinks, beverage containers, and other goods are related in the mind of the consuming public as to the origin of the goods."

The Board also found that "the purchasers would overlap ... inasmuch as pet owners who were interested in a pet bowl would also include individuals who were interested in purchasing opposer's soft drinks, T-shirts, plastic beverage containers, and other promotional items associated with its SLURPEE and SLURP AND GULP drinks." [TTABlog query: With the temperature hovering in the 90s in Boston, I'm thinking that the category of "individuals who were interested in purchasing opposer's soft drinks" includes just about every consumer.]

Resolving any doubt in Opposer's favor, the Board found confusion likely and it sustained the opposition.

TTABlog comment: Why bother with a dilution claim (which requires that the marks at issue be substantially identical) when one can obtain broad protection like this under Section 2(d)?

TTABlog attempted humor: Question: Did you ever see a ferret bowl? Answer: No, but I've played golf with a weasel or two.

Text Copyright John L. Welch 2008.


Post a Comment

<< Home