TTAB Sustains 2(d) Opposition, finding "SWEDISH LUXURY" and "SWEDISH SLEEP SYSTEM" Confusingly Similar for Mattresses
Deeming Opposer's mark to be "strong and entitled to a broad scope of protection," the Board sustained this Section 2(d) opposition to registration of the mark SWEDISH LUXURY for, inter alia, mattresses and related retail store services [SWEDISH disclaimed], finding it confusingly similar to the registered mark SWEDISH SLEEP SYSTEM for "mattresses, cushions and pillows made of elastic viscous foam" [SLEEP SYSTEM disclaimed]. However, the Board threw out Opposer's claim under Section 2(e)(3), finding that the opposed mark is not primarily geographically deceptively misdescriptive in light of the lack of proof that consumers believe that "Sweden" indicates the origin of the mattresses. Tempur-Pedic International Inc., et al. v. Denver Mattress Co., LLC, Opposition No. 91169165 (February 4, 2010) [not precedential].
The Board's 2(d) analysis was straightforward. It rejected Opposer's claim that its mark is famous because, despite impressive evidence of sales and advertising, Opposer failed to separate the recognition of SWEDISH SLEEP SYSTEM from that of the TEMPUR-PEDIC mark that always accompanies it.
The Board found the goods of the parties to be legally identical and Applicant's services to be closely related or complementary to Opposer's goods. Applicant argued that it sells its products only at its own stores and therefore that confusion cannot occur. The Board pointed out, however, that there are no such restrictions in Applicant's identification of goods, nor are there any limitations in Opposer's registration, and so the Board must presume that these identical goods travel in the same channels of trade to the same classes of customers.
The fact that mattresses are purchased with some care slightly favored Applicant, but the Board observed that the memories even of discriminating purchasers are not infallible.
As to the marks, since the goods are in part identical, a lesser degree of similarity is needed to support a likelihood of confusion finding. The Board found the marks to be "substantially similar in appearance, sound, connotation and commercial impression due to the shared term 'SWEDISH.'" Customers are likely to assume that Applicant's mark is a "variant" of Opposer's mark.
Applicant's evidence of third-party use of the word SWEDISH failed to establish widespread use of similar marks for bedding products, and it therefore had no impact on the strength of Opposer's mark.
And so the Board sustained Opposer's Section 2(d) claim.
With regard to the Section 2(e)(3) claim, Opposer argued that "Sweden is noted for its high quality and high reliability furniture products ... and because Applicant's goods do not originate in Sweden, the goods/place association between SWEDISH LUXURY and Applicant's memory foam products would be material to a consumer's decision to purchase the goods."
The Board, however, found Opposer's evidence "stale" (more than ten years old) and/or of little probative value, concluding that Opposer failed to demonstrate that consumers are likely to believe that Sweden indicates the origin of Applicant's mattress.
TTABlog comment: Did you know that SWEDISH FISH is a registered trademark? I hate them when they are stale. Fish, not trademarks
Text Copyright John L. Welch 2010.