Test Your TTAB Judge-Ability on These Two House Marks for Construction Services
According to Long John Silver’s, the comparison of design marks comes down to a "subjective 'eye ball' reaction," so take a gander at the design marks below and let's see how well you do. Applicant Frangeli Consulting sought to register the mark shown below left, for architectural design, construction, and related services. Examining Attorney Linda E. Blohm refused registration under Section 2(d), finding the mark likely to cause confusion with the two marks on the right (one claiming the color red, the other with no color claim), registered for building and construction services. So what do you think? Would you bet the house on it? In re Frangeli Consulting, Inc., Serial No. 77684564 (October 17, 2011) [not precedential].
The Board found the respective services of the parties to be identical or closely related, and the channels of trade and classes of consumers overlapping. Of course, when the involved services are identical or closely related, the degree of similarity in the marks necessary to support a finding of likelihood of confusion declines.
As to the marks, side-by-side comparison is not the proper approach. The average consumer "normally retains a general rather than a specific impression of trademarks." "Here, consumers are likely to remember a white cross set against a dark background being situated inside a house; they are less likely to recall whether the cross is contained within a circle or not."
Applicant pointed to Red Carpet Corp. v. Johnstown American Enterprises Inc., 7 USPQ2d 1404 (TTAB 1988), where the Board dismissed an opposition to registration of the mark on the left in view of the registered mark on the right, for closely related real estate services.
This panel was not impressed. It observed that in Red Carpet, the overall commercial impressions of the two marks were substantially different, even though the designs were referred to as pentagonal “house designs.” There the Board found that the designs "are so different visually it is not even accurate to describe them as [having] ‘common elements.’ The suggestive connotation of the two different designs may be common, but this is quite different from concluding that they share a common design element."
Here, however, the marks "share common design elements, and these elements are the prominent features of both parties’ marks. Accordingly, the marks are similar in appearance and overall commercial impression."
Finally, Applicant urged that the consumers of the services are sophisticated and would exercise care in making their purchasing decisions. Once again, the Board shrugged off that argument: "Even sophisticated consumers may view the marks as variations on a theme intended to differentiate related services having a common source or sponsorship."
And so the Board affirmed the refusal.
TTABlog comment: Should this one be put in the "WYHA?" folder? Note that rookie judge Linda Kuczma apparently makes her first appearance on a TTAB panel, but we are still awaiting her first opinion.