Wednesday, April 07, 2010

Sophistication of Purchasers Leads to TTAB Reversal of 2(d) Refusal of "TITAN" for Commercial Coffee Brewers

Because the respective goods are expensive and are likely to be purchased carefully by knowledgeable buyers, the Board reversed a refusal to register the mark TITAN for "large volume beverage brewing and dispensing equipment, namely, heated coffee and tea brewers and servers," finding it not likely to cause confusion with the identical mark registered for "cooking and cooling equipment, namely, electric and gas ranges; salamanders; electric broilers; cheesemelters; electric deep fryers; electric and gas ovens; refrigeration and cooling units, namely, food and beverage chilling units; freezers; food steamers; smokers; gas grills; and electric griddles.” In re Bunn-O-Matic Corporation, Serial No. 77137482 (March 30, 2010) [not precedential].

As to the marks, Applicant argued that it uses TITAN as a "double-entendre" relating to the size of the products, whereas the products of the registration are normal in size. The Board said no and no. "To the extent that TITAN has a particular meaning, it is likely to pertain equally to both applicant's and registrant's identified goods."

Applicant also argued that TITAN is a weak mark, since it appears in more than 1800 company names and numerous third-party registrations. The Board pointed out that this evidence does not show the strength or weakness of Applicant's mark in connection with its goods. It does show that TITAN is suggestive of large size or strength. But the marks are identical anyway.

salamander broiler

As to the goods, Applicant conceded that they would be found in a commercial food service, and that these goods would be sold by the same types of distributors. But applicant argued that the goods "are different, serve different purposes, and are not complementary," and it submitted evidence that the goods are purchased by knowledgeable professional buyers and that some distributors sell "everything from table linens to ovens."

The Examining Attorney submitted third-party registration evidence, but the registrations were owned by one entity. Her internet evidence pertained to goods for household use, not commercial products. And although the websites of several commercial food service distributors displayed both Applicant's and Registrant's goods, the goods "were identified by various brands that are different from the name of the distributor."

The Board agreed with Applicant that evidence of the sale of some of the respective goods through the same commercial distributors "is not determinative, as these distributors sell a wide variety of goods under various trademarks." [Like department stores, I suppose - ed.]

In short, the Board found the Examining Attorney's evidence insufficient to establish likelihood of confusion, particularly in light of the sophistication of the purchasers, and so the Board reversed the refusal to register.

TTABlog note: Compare this decision to the Board's ruling in In re Toshiba Medical Systems Corporation, 91 USPQ2d 1266 (TTAB 2009) [precedential]. [TTABlogged here]. There the Board found confusion likely between the marks TITAN and VINTAGE TITAN for medical imaging products, despite the sophistication of the purchasers.

TTABlog comment: I can see this decision going the other way. What about the old saw that "even sophisticated customers may be confused when identical marks are used on related goods"?

Text Copyright John L. Welch 2010.


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