Test Your TTAB Judge-Ability: Are "THE CLOSET GUY" and "THE CLOSET LADY" Confusingly Similar for Closet-Related Services?
In this appeal from a Section 2(d) refusal to register the mark THE CLOSET GUY in the design form shown below, for "installation of custom closets and storage systems" and "custom manufacture of closets and storage systems," the Board's decision turned on the similarity of the applied-for mark to the registered mark THE CLOSET LADY for "consulting and design services for others in the field of storage units and closets.” What would you decide and how would you reach that decision? In re The Closet Guy, Inc., Serial No. 77426306 (March 25, 2010) [not precedential].
In its brief, Applicant discussed only one du Pont factor, namely, the dissimilarity of the marks. Not surprisingly, the Board found Applicant's services to be closely related to the goods and services of the cited registration.
Turning to the marks, Applicant "acknowledged that, as a general rule, when a mark consists of words and a design, it is the word portion that is accorded greater weight in the likelihood of confusion analysis because it would be used by purchasers to refer to or request the goods or services." Here, however, according to Applicant, the design is so prominent that it should be given greater weight. The Board disagreed.
Although the design is certainly visually prominent, it is a picture of a man building a closet, and therefore it merely reinforces the meaning of the word portion of the mark, THE CLOSET GUY. As such, it does not serve to distinguish applicant’s mark from the registrant's.
Applicant asserted that "no one is entitled to exclusive rights to the words THE and CLOSET [in fact, CLOSET was disclaimed in each mark], and that GUY and LADY are sufficiently different to avoid confusion. But the Board found that the marks as a whole are similar in meaning and commercial impression "in that they convey the idea of a person who is creating closets for customers."
The difference in the gender of the person conveyed by the word GUY and LADY in the respective marks is not sufficient to distinguish them, as the overall impression is that of a person who helps the customer and performs the service for them.
The Board noted that marks are not to be compared side-by-side, since "an average purchaser does not retain all the details of a mark, but rather the mental impression the mark creates in its totality."
Because the word portion of applicant’s mark follows the same format as the registered mark, i.e., the phrase THE CLOSET followed by and ending with a word identifying a person by gender, such that the overall meaning is that of a person who designs or creates closets; because the design element in applicant’s mark merely reinforces this meaning; and because the marks as a whole create the same commercial impression; we find that the du Pont factor of the similarity of the marks favors a finding of likelihood of confusion.
Finally, the Board pointed out that any doubt regarding likelihood of confusion must be resolved in favor of the registrant.
TTABlog comment: How did you do? Easy, wasn't it?
Text Copyright John L. Welch 2010.