Friday, May 04, 2012

WYHA? TTAB Affirms 2(d) Refusal of AIRIA over AREA, Both for Night Clubs

The Board affirmed a Section 2(d) refusal to register the mark AIRIA, finding it likely to cause confusion with the registered mark AREA, both for night clubs. Of course when the services are identical, a lesser degree of similarity between the marks is necessary to support a finding of likelihood of confusion. Applicant Gila River argued that the marks are pronounced differently, the two night clubs are in different geographical areas, and the customers are sophisticated [Seriously? - ed.]. If it were up to you, Would You Have Appealed? In re Gila River Gaming Enterprises, Inc. , Serial No. 76699882 (April 10, 2012) [not precedential].

Gila urged that the second syllable would be stressed when pronouncing its mark, but that argument fell on deaf ears. The Board observed once again that there is no correct pronunciation of a trademark, especially a coined term. [What about APPLE? BLACK CAT? TTABLOG? Ahh ... forget that third one. - ed.].

Even if Gila's [pronounced Gee-lay? Jy-lah? Hee-luh?] argument regarding pronunciation were accepted, the marks would still be similar in sound. Furthermore, they are similar in appearance. [Remember, a side-by-side comparison is not the proper approach - ed.].

Gila pooh-poohed Examining Attorney Mariam Aziz Mahmoudi's analysis of the similarity between the marks. She maintained that the marks are audially and visually similar because they both begin with A, contain the letter R as the second or third letter, and end with similar vowel sounds. Gila feebly argued that, under that approach, the mark AREA would be visually similar to ARTESIA, ARMENIA, and ABRACADABRA. The Board quickly discarded that argument, perceptively noting that those three terms are not at issue here.

To the extent Gila's mark is pronounced "area," the marks engender a similar meaning and commercial impression: connoting a space "where the action is happening or the place to be."

And so the Board concluded that the similarities in the marks outweigh the differences.

Gila lamely urged that customers will not be confused because the clubs are so different: Registrant's nightclub is on La Cienega Boulevard in Hollywood/Los Angeles, while its club is situated in a casino on the Gila River Indian Community Reservation in Chandler, Arizona.

They are not likely to confuse the services offered by a nightclub that is “open and airy” and popular with “Hollywood heavyweights” and “celebrities” with those offered by a “high-energy” nightclub having “glimmering lights,” “pumping rock remixes and “fresh hip-hop mash-ups.” In short, they are sufficiently sophisticated to discern the difference between the services offered between the “area” [sic] nightclub and the “AIRIA” nightclub such that there is simply no likelihood of confusion.”

Of course, the differing locations and of the two clubs is irrelevant, since the services recited in the application and registration are not geographically restricted; nor are they restricted as to "energy level" or ambiance. As to the alleged sophistication of the customers, there was no record evidence to support that assertion. Moreover, even if frequent "clubgoers" exercise care, those who go "clubbing" on a less frequent basis might not be so sophisticated.

Lastly, Gila strangely argued that because the Examining Attorney did not analyzed the fame of Registrant's mark, this duPont factor favors Gila. No, said the Board. The Examining Attorney is not expected to submit evidence of fame in an ex parte proceeding.

And so the Board affirmed the refusal to register.

TTABlog comment: Well, would you have?

Text Copyright John L. Welch 2012.


At 7:10 PM, Anonymous Arizona Trademark Attorney said...

Not sure if it was a rhetorical question, but Gila is pronounced Hee-luh, and, for what it's worth, when I have seen advertisements for the night club around town, my inner voice has always pronounced AIRIA as "area."


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