CAFC Hears Argument in "ODOM'S PRIDE" 2(d) Summary Judgment Appeal

The CAFC heard oral argument today (mp3 here) in the appeal from the TTAB's decision in Odom's Tennessee Pride Sausage, Inc. v. FF Acquisition, L.L.C., Opposition No. 91182173 (April 17, 2009) [not precedential]. [TTABlogged here]. The Board found the mark shown to the right, for retail grocery store services, not confusingly similar to the six registered marks shown below, for various food items, including sausage, barbequed pork, and various other swine-related products. In its terse six-page opinion, the Board granted the motion for summary judgment, finding that, even considering all other relevant du Pont factors in Opposer Odom's favor, the single factor of the dissimilarity of the marks was dispositive:


The Board said this:

While both parties’ design marks consist of smiling boys wearing hats (and in some instances both waiving [sic!] one hand), this is where the similarities end. Opposer's marks depict a barefoot child holding a fishing pole. The boy is wearing a tall pilgrim hat with a ribbon directly above the brim. The boy's feet are small and narrow. By contrast, applicant’s mark depicts a boy facing forward wearing a short, wide brimmed cowboy hat. This boy is wearing thick boots, has thick hands, and has a piece of straw in his mouth. The boy depicted in opposer’s marks has nothing in his mouth. These visual distinctions are sufficient to create different commercial impressions of the marks, thereby precluding a finding of likelihood of confusion.

Appellant argued that the Board's side-by-side comparison and dissection of the marks was not the proper way to assess their similarities. Appellee argued that Appellant was trying to rely on common law uses of its marks that were not pled in the notice of opposition.

Text Copyright John L. Welch 2009.