Friday, March 18, 2011

WYHA? ALLENS NATURALLY Refused Registration over ALEN AMERICAS for Cleaning Preparations

This applicant sought registration of the mark ALLENS NATURALLY for, inter alia, all-purpose cleaners, but Examining Attorney Sara N. Benjamin refused registration under Section 2(d) in view of six registrations for marks including the word ALEN for various cleaning preparations. The Board focused on the cited registration for ALEN AMERICAS for "all purpose liquid cleaning preparations" [AMERICAS disclaimed]. Would you have appealed? In re Almar Enterprises Ltd., Serial No. 77650559 (February 25, 2011) [not precedential].

The Board found the goods to be, in part, identical, and the channels of trade to be the same. These factors weighed heavily in favor of a finding of likely confusion.

The Board deemed ALEN to be the dominant portion of the registered mark, and ALLENS to be dominant in Applicant's mark.

As applicant points out, the term NATURALLY serves a double meaning of either suggesting the “greenness” of its products (appl’s brief at 14) or of emphasizing the brand -- ALLENS “of course.” Id. In either case, while we view applicant’s mark in its entirety, we find that the term “ALLENS” is emphasized, and creates the dominant commercial impression.

The extra "L" in the applied-for mark is likely to be overlooked by customers, who may believe that Applicant's goods are an extension of those of registrant, "perhaps either in a more 'green' line 'NATURALLY' or emphasizing that consumers should once again choose that brand 'of course.'"

Applicant argued that the word ALEN or ALLENS is a weak formative in light of 722 records in the USPTO database for mark containing one of the words. However, the marks were not for cleaning preparations and, in any case, Applicant did not submit copies of the registrations, as required.

Finally, Applicant pointed to the lack of actual confusion, but of course that carries little weight, "especially in an ex parte context."

And so the Board affirmed the refusal.

TTABlog comment: Here, the double entendre in Applicant's mark didn't help. Compare that to yesterday's RAISED RIGHT beef case, where the double entendre was ignored by the Board.

Text Copyright John L. Welch 2011.


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