Wednesday, April 28, 2010

Test Your TTAB Judge-Ability: Are "ARTEHOUSE" and "ART HOUSE GREETINGS" Confusingly Similar for Greeting Cards?

Okay, here's your next assignment. Applicant sought to register the mark ART HOUSE GREETINGS in standard character form, for greeting cards [GREETINGS disclaimed], but the Examining Attorney refused registration under Section 2(d), finding the mark likely to cause confusion with the registered mark ARTE HOUSE for "fine art prints, posters, calendars and greeting cards." What's your decision? In re Art House Greetings, Inc., Serial No. 77093040 (April 13, 2010) [not precedential].

Both the application and the cited registration include "greeting cards." The Board presumed that those goods travel in the same channels of trade to the same classes of customers. Greeting cards are relatively inexpensive items that would be purchased with ordinary care. These factors weighed "heavily" in favor of a finding of likelihood of confusion.

Of course, when the goods are identical, a lesser degree of similarity between the marks is required to support a finding of likely confusion.

The Board found, not surprisingly, that the term ART HOUSE dominates the applied-for mark and is similar to Registrant's entire mark ARTEHOUSE. As to appearance, the Board agreed with Examining Attorney Aisha Clarke that American consumers will not give much significance to the letter "E" in the cited mark, since it appears in the middle of Registrant's mark.

As to sound, the Board observed again that "there is no 'correct' pronunciation of a mark." [What about BLACK CAT for firecrackers? or APPLE for computers? - ed.]. This is particularly true with regard to a "foreign" term like "arte." Applicant contended that consumers will articular the "E" in a sharp, clear fashion, but the Board found it just as likely that American consumers will not pronounce the "E" at all. [Would those who pronounce the "E" say "ARTIE HOUSIE?" - ed.] And even if the "E" were pronounced, the difference in sound between the two marks would be minimal.

The marks convey essentially the same meaning, since the Italian word ARTE translates as "art."

Finally, as to commercial impression, Applicant argued that ARTE HOUSE is an incongruous combination which is distinguishable from the completely English combination ART HOUSE. The Board disagreed, opining that American consumers may not even notice the purported incongruity.

In sum, the differences in the marks are outweighed by the similarities.

Applicant contended that its goods are "directed toward a more sophisticated buyer." [See Applicant's website here]. Even assuming that to be true (and there was no such limitation in Applicant's identification of goods), the Board noted that even careful purchasers are likely to be confused when similar marks are used for identical products.

And so the Board affirmed the refusal to register.

TTABlog comment: If you were about to file the appeal in this case, what percentage would you apply to your chances of success?

Text Copyright John L. Welch 2010.


At 9:18 AM, Anonymous Anonymous said...

If I had been asked to predict the probability of success? No more than about 5%

At 11:56 AM, Anonymous Joe Dreitler said...

Somewhere around 0%. Not sure why you bother with one like that unless there are a lot of other 3rd party marks with "art" in them. Even in that situtation, you're still looking at no better than 30% and an opinion that says we're sorry for what happened in them, but we're not bound by mistakes made in prior examinations. (That one always bothers me.)


Post a Comment

<< Home