Tuesday, December 23, 2008

Despite Fame of "RE/MAX," TTAB Finds No Likelihood of Confusion with "SAVEMAX REALTY"

An opposer who proves its mark famous usually wins in a Section 2(d) opposition, particularly when the parties' goods or services are identical. Not this time. The Board dismissed an opposition to registration of the mark SAVEMAX REALTY in the logo form shown below, finding it not likely to cause confusion with the famous mark RE/MAX, both for real estate brokerage services RE/MAX International Inc. v. Somraj Singh, Opposition No. 91175272 (December 10, 2008) [not precedential].

Opposer established the fame of its mark via testimony that it has 4,315 offices in the United States, 80,000 sales associates, and a 16% market share. Since 2006, its website has listed 3.9 million properties. In 2007, Opposer and its associates spent $1 billion, accounting for about 47% of the paid advertising in the real estate field.

The services of the parties are identical, and therefore the Board must presume that the channels of trade and classes of purchasers are the same.

Turning to the marks, the Board noted that when the services are identical, a lesser degree of similarity is necessary between the marks to support a finding of likelihood of confusion. However, here the only similarity between the marks is the suffix "max""

"Max" is an abbreviation for the descriptive or highly suggestive word "maximum." Accordingly, when we consider the marks in their entireties, we are of the opinion that they differ substantially in appearance, sound, meaning and commercial impression.

Opposer contended that the marks are similar because they "share the prominent use of the suffix 'MAX.' However, the Board observed, "While both parties adopted their marks to connote a 'maximum' quality, their marks emphasize different qualities (i.e., the maximum in real estate and experience vs. maximum savings)." "The marks are also obviously different in appearance and pronunciation because of the differences in the initial portions of the marks."

The Board rejected Opposer's argument that the dominant portion of Applicant's mark is "max," and that when "max" is used with regard to "anything related to real estate, everybody thinks of RE/MAX first." As to the latter point, the Board noted that Opposer did not plead ownership of a family of MAX marks.

The Board concluded that the marks are not similar in appearance, sound, meaning, or commercial impression, and it therefore dismissed the opposition.

Text Copyright John L. Welch 2008.


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