Wednesday, September 14, 2011

Precedential No. 22: TTAB Renders Split Decision in CURE4KIDS 2(d) Oppositions

In this less than scintillating, yet precedential decision, the Board sustained two Section 2(d) oppositions and dismissed three more, all alleging likelihood of confusion with the mark CURE4KIDS, registered in standard character and design form, for "charitable fund raising in the field of children's healthcare" and "providing medical information." Applicant sought to register the marks CURE KIDS, CURE KIDS USA, and the three design marks shown below, all containing the words "Cure Kids," for fundraising services and medical research [with various words disclaimed]. This summary will touch on the highlights of the decision, such as they are. American Lebanese Syrian Associated Charities, Inc. v. Child Health Research Institute, 101 USPQ2d 1022 (TTAB 2011) [precedential].

At page 11 of the opinion, the Board provided a handy chart comparing the services of the parties. It found the respective services to be either legally identical or related, and the channels of trade and classes of consumers to be the same or overlapping.

As to the inherent strength of Opposer's marks, third-party registrations "corroborate the common sense conclusion that the term 'Cure4Kids'" is highly suggestive, if not descriptive of the services "because it describes the purpose of the fund raising and medical research." Nonetheless, the registrations are entitled to the Section 7(b) presumptions and may be considered, at most, highly suggestive.

As to the commercial strength of Opposer's marks, the evidence showed that the marks are generally used in conjunction with ST. JUDE'S CHILDREN'S RESEARCH HOSPITAL. The record did not show that the CURE4KIDS marks are commercially strong. And so this particular evidence was considered neutral.

As to the marks, the Board found Applicant's marks CURE KIDS and CURE KIDS USA to be similar to Opposer's CURE4KIDS mark. As to the other three marks of Applicant, however, they are different from Opposer's mark because the include other source identifying words and designs. Keeping in mind that "Cure Kids" and "Cure4Kids" are highly suggestive, the designs and other wording are "sufficient to distinguish" the marks.

Balancing the duPont factors, the Board sustained the two oppositions against Applicant's standard character marks, but dismissed the three oppositions against Applicant's design marks.

TTABlog query: Why was this decision deemed precedential?

Text Copyright John L. Welch 2011.


At 5:54 PM, Anonymous Anonymous said...

Perhaps they should not have wasted any time and money on TTAB and would have fared better in USDC?

Now they have to go there anyway for other three?

At 5:10 PM, Anonymous Marta R. said...

I do wish that applicants would think more deeply about the meanings of marks. "Cure for X" implies that X needs curing (cure for warts, cure for the common cold, cure for hangnails). So the "cure for kids" is, what, celibacy?

Reminds me of another well-meaning but badly conceived fund-raising mark, Cancer-a-thon. In a walk-a-thon one walks, a swim-a-thon one swims, in a cancer-a-thon one ...

It doesn't bear thinking of, does it?


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