Parties Opt For ACR: TTAB Finds "AETNA ONE" Not Confusingly Similar to "HUMANA ONE" for Health Care-Related Services
Eleven months after the opposition was filed, the parties received their TTAB decision in Humana Inc. v. Aetna Inc., Opposition No. 91192704 (October 13, 2010) [not precedential]. The parties opted for the Board's ACR (Accelerated Case Resolution) procedure, agreed to accelerated discovery, skipped trial, and then proceeded to briefing on the merits, relying on evidence submitted with their briefs. [See Board's Order here].
The Board found Applicant's mark AETNA ONE, in standard character and stylized form, for managed health care services not likely to cause confusion with the registered mark HUMANA ONE & Design for various pre-paid health care insurance and administrative services.
Third-party registration evidence convinced the Board that the involved services are related. Opposer's services "could be directed to or at least be encountered by individuals or companies who are purchasers or users of applicant's managed health care services." However, consumers are likely to exercise some degree of care in choosing health care and related insurance services.
Opposer claimed that its mark is famous and it submitted substantial sales and marketing figures, but it failed to put these numbers in context, for example by evidence of its market share. Therefore, the Board considered this factor to be neutral. Moreover, the Board observed that even if Opposer's mark were famous, the differences in the marks would overcome the fame factor.
Third-party registrations and uses showed that the term ONE "is relatively diluted as used in the health insurance field, and that marks using the word 'One' often co-exist and are distinguished because of other terms used in conjunction with 'One.'" This factor therefore weighed against Opposer.
Finally, as to the marks, the Board not surprisingly found that the terms AETNA and HUMANA are the dominant portions of the respective marks, and that the marks in their entireties differ in appearance, sound, connotation and commercial impression. Moreover the respective design marks differ even more.
In sum, the Board found that the first du Pont factor, the dissimilarity of the marks, "outweighs the evidence as to the other factors which favor opposer's case."
And so the Board dismissed the opposition.
TTABlog comment: I'm getting to like this ACR idea more and more. Limited discovery and evidence by affidavit eliminates a lot of wasteful effort.
Text Copyright John L. Welch 2010.