Test Your TTAB Judge-Ability: Are These Two Fruit Designs Confusingly Similar?
Apple, Inc. opposed an application to register the design mark shown below left, claiming likelihood of confusion with its registered and famous mark shown below right, the marks being for legally identical goods and services. So how would you decide? Apple, Inc. v. Echospin, LLC, Opposition No. 91171592 (June 29, 2010) [not precedential].
The Board began by finding the Apple logo to be a famous mark in light of Opposer's staggering revenue and advertising figures, extensive media coverage, and favorable survey results. It concluded that Apple "has shown significant market exposure, revenue, and overall fame amongst the relevant public."
Of course, because the goods and services involved are legally identical, the Board must presume that they travel in the same channels of trade to the same prospective customers.
And so it all came down to the marks, with Apple entitled to a broad scope of Section 2(d) protection for its famous mark. Moreover, since the goods and services are identical, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion.
Applicant argued that its mark is an orange, not an apple:
In fact, the evidence . . . . clearly shows that Echospin picked the orange logo to make that very distinction, that Echospin is the no-Apple, the opposite of Apple, an alternative to Apple, and an improvement over Apple.
The Board sagely took this as an admission that Applicant's mark "is shaped like a fruit."
In considering the apple and the orange, the Board noted that a side-by-side comparison is not the appropriate approach. "The proper focus is on the recollection of the average customer, who retains a general rather than specific impression of the marks."
The Board found the marks "quite similar in concept and style, both being simple, abstract representations of fruit, rather than photographic pictures thereof.
Furthermore, opposer’s mark contains a bite in the upper right section of the fruit. Applicant’s mark contains a series of small, white circles in the same area of its fruit, thereby creating a similar commercial impression of a missing piece of the fruit. Finally, opposer’s mark is in the shape of an apple, with a short, detached leaf at the top, pointed to the right. Applicant’s mark is also by admission a fruit, with two short, detached leaves at the top, one of which is quite similar in size and direction to that in opposer’s mark.
Keeping in mind that a famous mark "casts a long shadow which competitors must avoid,"the Board found that the marks have similar connotations and commercial impressions.
And so the Board sustained the opposition.
TTABlog comment: Keep this case in mind the next time someone complains that you are comparing apples to oranges. Anyway, I don't think Applicant's mark looks like an orange. It looks more like an apple, or maybe a butterfly landing on a donut with jimmies.
Text Copyright John L. Welch 2010.