Wednesday, December 22, 2010

Baja Humbug? Affirming 2(d) Refusal, TTAB Finds Confusion Likely Between "BAJA" for Camping Trailers and Automobiles

Applicant Jayco, Inc. will have a bluer Christmas after the TTAB affirmed a Section 2(d) refusal of the mark BAJA for "recreational vehicles, namely, folding camping trailers," finding it likely to cause confusion with the identical mark registered for "automobiles and structural parts therefore [sic!]." The Board made a list of the relevant du Pont factors [not sure if it checked it twice - ed.], and concluded that even if the purchasers of these products exercise a "high degree of care," the other factors outweigh that one. In re Jayco, Inc., Serial No. 77619590 (December 2, 2010) [not precedential].

Examining Attorney Benji Paradewelai delivered a sackful of third-party registrations identifying both folding camping trailers and automobiles, as well as website pages showing that Volkswagen sells both, and other website pages where both automobiles and trailers are offered at retail.

The Examining Attorney also contended that trailers and automobiles are "complementary products that may be used together," citing an article and several website pages that say so. [hearsay? - ed.]

The Board concluded that these goods are related and the channels of trade the same, since the evidence shows that trailers and autos "may emanate from the same source, consumers use the products together and they may be purchased at a single location."

Jayco argued that folding camping trailers are purchased "by the most discriminating buyers, thereby preventing any likelihood of confusion." Both autos and trailers cost at least $10,000, according to Jayco. Not good enough, said the Board. Even recognizing that the purchasers "are likely to exercise a high degree of care," the Board observed once again that "even careful customers are not immune to trademark confusion, especially where, as here, the marks are identical."

And so the Board affirmed the refusal.

TTABlog comment:
The "customer sophistication" argument seems to me to be a makeweight that the Board can use to tip the du Pont scale in whichever direction it wants to end up. Do you agree?

Text Copyright John L. Welch 2010.


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