Thursday, July 29, 2010

WYHA? TTAB Affirms 2(d) Refusal of "RIPPLE KIDS & Design" Over "RIPPLE & Design," Both for Stationery

In a terse ten-page decision, the Board affirmed a Section 2(d) refusal to register the mark RIPPLE KIDS in standard character and design form (below left) [KIDS disclaimed], finding the marks likely to cause confusion with the registered mark RIPPLE & Design shown below right, all for stationery products. Would you have appealed? In re Ripple Kids Inc., Serial No. 77492885 and 77493208 (July 14, 2010) [not precedential].

The Board found some of the respective goods of the parties to be legally identical, and therefore it presumed that the goods travel in the same channels of trade to the same classes of consumers.

As to the marks, the Board not surprisingly deemed RIPPLE to be the dominant part of Applicant's marks. The depiction of ripples reinforces this dominance in the design mark. And the cited mark likewise depicts a few ripples in a "highly similar" design.

The Board concluded that the similarities in the marks outweigh the differences.

Applicant argued that "consumer sophistication should weigh in its favor," but it submitted no evidence in support. In fact, evidence of record showed that stationery is sold on line for less than two dollars.

Applicant also referred to "a number of third-party registrations that contain the word 'Ripple" or "Kids," but again it provided no evidence.

Finally, Applicant lamely argued that the lack of actual confusion should weigh in its favor, but the Board of course pointed out that such a lack carries little weight, especially in an ex parte context where the registrant has no opportunity to be heard. Moreover, the applications at issue are based on intent-to-use, and so there has been no opportunity for confusion.

Balancing the relevant du Pont factors, the Board found confusion likely, and it affirmed the refusal.

Text Copyright John L. Welch 2010.


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