Wednesday, May 13, 2009

TTABlog Challenge: Test Your TTAB Judgeability

Here's another chance to evaluate your potential as a TTAB judge. Let's see if that legal sheepskin on your wall was worth the cost of framing it. We have another Section 2(d) likelihood of confusion case for consideration. The Opposer alleges ownership and prior use of the mark LAMB'S for rum and has submitted registrations for the mark LAMB'S NAVY RUM and for the two design or stylized marks shown below. The Applicants seeks to register LAM for rum. You already know how this comes out, don't you? Ok, how many pages will it take you to run through the du Pont factors and reach your conclusion? I doubt you were as efficient as the Board in Corby Distilleries Limited v. Augusto Ramon Lopez, Eva Maria Lopez and Maximo Ignacio Lopez, Opposition No. 91180144 (April 30, 2009) [not precedential].

In a mere eight pages (quite short for a 2(d) ruling), the Board not surprisingly sustained this opposition. The only real issue was the similarity of the marks, and on that point the Board reasoned as follows:

The terms LAMB’S and LAM are phonetically similar. They are also visually similar because they both begin with the letters L-A-M. There is little, if any, trademark significance in the apostrophe letter "s" in opposer's mark. See Winn's Stores, Incorporated v. Hi-Lo, Inc., 203 USPQ 140 (TTAB 1979) ("little if any trademark significance can be attributed to the apostrophe and the letter 's' in opposer’s mark" WINN'S when compared to applicant's mark WIN-WAY). See also Calvin Klein Industries Inc. v. Calvins Pharmaceuticals Inc., 8 USPQ2d 1269, 1271 (TTAB 1988) (the addition of the letter "s" at the end of applicant's mark CALVINS does little distinguish it from opposer's mark CALVIN); In re Curtice-Burns, Inc., 231 USPQ 990, 992 (TTAB 1986) (McKENZIE’S and McKENZIE are nearly identical). When used in connection with rum, LAMB'S (or LAMB) and LAM are equally arbitrary, and thus they engender the same commercial impression. Accordingly, we find that the marks are similar in appearance, sound, meaning and commercial impression.

Balancing the du Pont factors , the Board found confusion likely between Applicants' mark LAM and the registered marks LAMB'S (Stylized) and LAMB'S NAVY RUM, and so it sustained the opposition.

TTABlog comment: How, pray tell, did the LAM application get by the Examining Attorney?

TTABlog nitpick: Opposer claimed common law rights in the word mark LAMB'S, and the Board compared Applicant's mark with that word mark LAMB'S, not with LAMB'S in Stylized form or with LAMB'S NAVY RUM. Not that it made much difference. But in its ultimate finding of likely confusion, the Board pointed only to those two registered marks and did not say that the word marks LAMB'S and LAM are confusingly similar. Now that surely didn't make any difference in the outcome, but the package could have been more neatly wrapped, don't you think?

TTABlog BTW: What is "navy rum," you might ask? According to CocktailDB, the Internet Cocktail Data Base, it is: "Generic for a type of London dock rum; Jamaican rum aged either on sailing ships or in warehouses along the banks of the Thames River in London, England. Several brands, notably Lamb's Navy Rum. Often bottled with a relatively high proof."

Text Copyright John L. Welch 2009.


At 8:30 PM, Anonymous Anonymous said...

Lam is a popular Vietnamese name that, when pronounced, rhymes with bomb.


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