Another Test of Your TTAB Judge-Ability: Are CLOUDBANKS and FOGBANK Confusingly Similar for Wine?
Let's see how you weather this TTAB storm: Fast Forward opposed Houdini's application to register the mark CLOUDBANKS for wine, on the ground of likelihood of confusion with the registered mark FOGBANK for wine. Keep in mind that, when the goods are identical, a lesser degree of similarity in the marks is needed to support a finding of likely confusion. How would you rule? Fast Forward Brands, LLC v. Houdini, Inc., Opposition No. 91188001 (April 22, 2011) [not precedential].
The record included dictionary definitions of "fog," "cloud," and "bank." Applicant Houdini submitted so-called "negative" dictionary evidence: i.e., pages from two dictionaries in which the term "cloudbanks" is not listed. Opposer offered twelve excerpts from printed publications, showing that "fog" and "cloud" and "fogbank" and "cloudbank" are sometimes used interchangeably and have similar or the same connotations and commercial impressions.
The Board acknowledged that FOGBANK and CLOUDBANKS "are somewhat different in appearance and sound." It noted that the meaning of the words "fog" and "cloud" forms the "heart" of opposer's case, and recognized that there is a difference in "technical meaning" between the words.
"However, we are primarily concerned with the meaning of the marks to the prospective purchasing public (in this case, ordinary consumers of wine), and not to meteorologists. ***[W]e believe that the popular or ordinary meanings of the words 'fog' and 'cloud' (and 'fogbank' and 'cloudbanks') are very similar, although there are technical distinctions between the two words. The ordinary meaning and usage of the two words are so close as to render the marks similar in the minds of ordinary consumers, who are not likely to be experts in meteorological terms."
And so the Board ruled that "the substantially similar meaning between 'fog' and 'cloud,' and 'fogbank' and 'cloudbanks,' outweighs any differences in appearance and sound."
Giving the prior registrant the benefit of any doubt, the Board sustained the opposition.
TTABlog query: In the photographs below, which is the fogbank and which is the cloudbank? Or are they both both?
Text Copyright John L. Welch 2011; Photographs Copyright John L. Welch 2010.