Thursday, June 07, 2012

Test Your TTAB Judge-Ability: Two "Skateboarder" Design Marks for Clothing

Maloof Skateboarding applied to register the design mark shown on the left, for various clothing items, including shirts, t-shirts, and sweaters. Examining Attorney Janice Kim refused registration under Section 2(d) in view of the registered design shown below right, for overlapping clothing items. Maloof argued that the designs show different types of skateboarding, and that the purchasers of the goods are sophisticated. How would you rule? In re Maloof Skateboarding, LLC, Serial No. 77931954 (May 23, 2012) [not precedential].

We all know that marks are not to be analyzed in a side-by-side comparison. The Board must consider the general impression made by the marks. Here, the general impression is the same: "the silhouette of a person on an airborne skateboard with his body turned slightly toward the right." Details such as long hair or jeans, or whether a skater's arm is up or down, are not likely to be noted or remembered.

Maloof contended that the relevant purchasers of the goods would recognize that the designs depict two different styles of skateboarding: Applicant's mark depicts a "street skateboarder," whereas the registered mark depicts a "vert skateboarder." [The few time I tried skateboarding, I ended up as a "horizontal-on-the-street skateboarder" - ed.].

Unfortunately for Maloof's argument, neither its application nor the cited registration identified the goods as being sold only to skateboarders. Regardless of whether some purchasers may be sophisticated, the Board must determine the likelihood-of-confusion issue from the point of view of the general public that buys the ordinary clothing items identified. The ordinary consumer cannot be expected to distinguish the styles of skateboarding. In short, the marks would have a similar appearance, meaning, and commercial impression.

Consequently, the Board affirmed the refusal to register.

TTABlog comment: How did you do? Are you ready to apply for a TTAB judgeship? If so, go here.

Text Copyright John L. Welch 2012.


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