Friday, September 26, 2008

"HAIR OF THE DOG" and "LES CHEVEUX DU CHIEN" for Clothing Not Confusingly Similar, Says TTAB

In an interesting application of the doctrine of foreign equivalents, the Board reversed a Section 2(d) refusal of the mark HAIR OF THE DOG for "clothing, namely, shirts, t-shirts, pants, shorts, headwear, hats, socks, sleepwear and dresses," finding it not likely to cause confusion with the registered mark LES CHEVEUX DU CHIEN "for custom manufacture of clothing, personal accessories in the nature of jewelry, stoles, scarves, linens, and home décor items." The Board found the mark "clearly different in appearance and pronunciation," and further that the marks would not be understood "as having the same idiomatic meaning." In re Innovative Technologies Corp. of America, Inc., Serial No. 78691831 (September 15, 2008) [not precedential].

The cited registration contains a translation of the mark as HAIR OF THE DOG. But "it is far from clear that the resulting phrase has the same meaning in French as it does in English." The Board found that the "most likely commercial impression of THE HAIR OF THE DOG (in English) is a reference to the hangover cure," i.e., the consumption of an alcoholic beverage to relieve a hangover. However, a French speaker, according to the Board, "will likely see the mark LES CHEVEUX DU CHIEN and perceive it literally as a statement about a dog's hair."

"... 'hair of the dog' in English has two meanings, one literal and one idiomatic. Having found that the latter is the predominant meaning and the one most applicable to applicant's mark, it is clear that a mechanical, word-for-word translation does not answer the question at hand: do the marks at issue - considered as a whole - mean the same thing?"

Turning to the Larousse French-English dictionary, the Board noted the following definition:

"phr: ... to have a [hair] of the dog (that bit you) reprendre un verre (pour faire passer sa guele de bois); here, a [hair] of the dog is what you need bois ça, il faut guérir le mal par le mal...."

Thus, the Board observed, the phrase "hair of the dog" does not translate into "les cheveux du chien" in French.

The Board distinguished In re Thomas, 79 USPQ2d 1021 (TTAB 2006), in which MARCHE NOIR and BLACK MARKET were deemed equivalent: there the evidence showed that the marks have the same idiomatic meaning in both languages.

The Board therefore concluded that the PTO had not demonstrated a likelihood of confusion, and it reversed the refusal.

TTABlog comment: Maybe I'm barking up the wrong tree, but I did not know the idiomatic meaning of HAIR OF THE DOG. Maybe the idiomatic meaning is its primary meaning, but how many people know the idiom? What about the rest of us who think HAIR OF THE DOG means dog hair? Ok, I admit I don't speak French, but if I did ...?

P.S. A quick, informal survey of a dozen people in my office found only one who knew the idiomatic meaning.

Text Copyright John L. Welch 2008.


Post a Comment

<< Home