Test Your TTAB Judge-Ability: Are Flowers and Flower Pots Related Goods?
You can guess how this is going to come out, can't you? Third-party registrations will convince the Board that the goods are related? Sure enough, the Board affirmed a Section 2(d) refusal to register the mark EZ GRO for "living flowers and plants and plant seeds," finding the mark likely to cause confusion with the registered mark EEZY-GRO for "flower pots and planters." In re Gardenlife, Inc., Serial No. 77709903 (April 14, 2011) [not precedential].
The Board found the marks to be substantially similar in appearance, identical in sound, suggestive of the same idea, and highly similar in commercial impression. Not surprisingly, the first du Pont favored a finding of likely confusion.
As to the goods, they are complementary items commonly used together. The Board explained (for the completely stupid) its finding: "registrant's goods being vessels into which applicant's living plants and seed may be placed for the purpose of potting plants or creating container gardens."
Moreover, Examining Attorney Sally Shih submitted various third-party registrations "showing that a common mark has been registered by the same entity for both seeds and/or plants and flower pots and/or planters." Other third-party registrations showed that the same entity rendered retail store services and on-line services that featured both types of goods.
The Board concluded that the involved goods are "complementary and closely related, all being gardening items, which may be sold by the same source under the same mark."
The Board found that the respective goods would be sold in overlapping trade channels to ordinary consumers.
Finally, although the two marks are suggestive and somewhat weak, any doubt as to likelihood of confusion must be resolved in favor of the registered mark. Furthermore, even a weak mark is entitled to protection against a very similar mark for closely related goods.
And so the Board affirmed the Section 2(d) refusal.
TTABlog note: I almost put this in the WYHA? category. Would you WYHA?
The idea that, because goods are complementary, they are related for 2(d) purposes is one that I find puzzling. Coffee and sugar are complementary, but are they related? Beer and pretzels? Dogs and fireplugs?
Text Copyright John L. Welch 2011.