CAFC Affirms TTAB Summary Judgment in 2(d) Farm Boy Design Dispute
In a precedential ruling, the U.S. Court of Appeals for the Federal Circuit affirmed the TTAB's decision granting summary judgment in Odom's Tennessee Pride Sausage, Inc. v. FF Acquisition, L.L.C., Opposition No. 91182173 (April 17, 2009) [not precedential].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 had found Applicant FF's 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. Odom's Tennessee Pride Sausage, Inc. v. FF Acquisition, L.L.C., 93 USPQ2d 2030 (Fed. Cir. 2010). [mp3 of oral argument here].
The court agreed with the Board that "even if all other relevant DuPont factors were considered in Odom’s favor, ... the dissimilarity of the marks was a sufficient basis to conclude that no confusion was likely." It rejected Odom's argument that the Board had improperly dissected the marks in its Section 2(d) analysis, and it agreed with FF that Odom could not rely on its unpleaded common law marks to show likelihood of confusion.
TTABlog observation: The Board used the spelling duPont, while the CAFC used DuPont. I prefer du Pont [with a space]. Which is correct?
Text Copyright John L. Welch 2010.