Finding Dissimilarity of "BIOMARINE" and "BIOMARIS" Marks Dispositive, TTAB Dismisses 2(d) Opposition
Despite overlapping goods and presumably identical trade channels, the Board dismissed a Section 2(d) opposition to registration of the mark BIOMARINE & Design for non-medicated skin care preparations, finding it not likely to cause confusion with the registered mark BIOMARIS for skin cleansing creams and related products. In a mere eight pages, the Board ruled that the marks are just too dissimilar to support Opposer's Section 2(d) claim. Walter Brachmann Gmbh & Co. KG v. Pro-Life Importacao E Exportacao LTDA, Opposition No. 91177890 (January 6, 2009) [not precedential].
Opposer chalked up a cosmetic victory in a skirmish involving its submission of a European Community Decision of the Office for Harmonization in the Internal Market. The Board agreed that the decision constitutes an official record admissible via notice of reliance. However, it pointed out that the OHIM decision "has no preclusive effect upon the instant case, and has little or no probative value in reaching our likelihood of confusion determination herein."
When it came to the comparison of the marks, however, Opposer ran out of luck. It argued that the marks "share the first seven letters in the same order" and thus "are substantially identical visually and in the commercial impressions they engender and they are most similar aurally." The Board disagreed:
Applicant's mark is highly distinctive visually, having a wave design within the letter "O." Although opposer is correct in noting that the marks are identical as to the first seven letters, the two marks sound different in their entireties. As to connotations, applicant's term "biomarine" has a readily recognizable meaning, i.e., a combination of "bio-" (biological) and "marine" (sea). The record demonstrates no readily apparent connotation associated with opposer's "Biomaris" mark.
The Board therefore concluded that the marks are "dissimilar as to their commercial impressions" and it dismissed the opposition.
TTABlog comment: Hmmm. The marks seem kinda similar to me. Notably absent from the decision is the often-cited maxim that "when the goods are identical, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion."
Text Copyright John L. Welch 2009.