Monday, September 17, 2012

TTAB Affirms 2(d) Refusal:"THE HURRICANE CLUB" Confusable With "HURRICANE GRILL & WINGS"

Applicant Fourth Wall Restaurants huffed and puffed but could not blow away the PTO's Section 2(d) refusal of the mark THE HURRICANE CLUB for "bar and restaurant services provided in the style and motif of a Polynesian supper club" [CLUB disclaimed]. The Board found the mark likely to cause confusion with the two registered marks shown below, owned by the same entity, for restaurant and cocktail lounges [GRILL and WINGS disclaimed]. In re Fourth Wall Restaurants, LLC, Serial No. 77930437 (August 29, 2012) [not precedential].

Of course, Registrant's "restaurant services" encompass the Polynesian-style services of the application, and therefore the involved services are considered to be legally identical. The Board must then presume that the channels of trade and classes of consumers overlap.

As to the marks, the design elements of the cited marks merely reinforce the word "hurricane," and that word dominates the other words and design features due to its relative size. Likewise in Applicant's mark, the word HURRICANE is prominent.

Applicant Fourth Wall pointed to certain arguments made by Registrant's precedessor-in-interest during prosecution, when, on arguing against a refusal, it asserted that the red flag design portion is dominant. The Board, however, is not bound by that argument, and it found the red flags to be subordinate to the word HURRICANE.

Applicant lamely contended that "hurricane" has different connotations in the marks because, in the cited marks, the word "connotes the fact that the company [registrant] originates from the state of Florida, which is strongly associated with Hurricanes and is referred to as 'The Hurricane State.'" Applicant maintained that because Applicant has no connection with Florida [Its restaurant is in New York City], the word "hurricane" in the applied-for mark contributes to the connotation of Applicant's Polynesian restaurant.

The Board, however, did not find two meanings for the word "hurricane." The "meager" record evidence did not establish that the word "hurricane" in the cited marks connotes the State of Florida. In any case, even if there were such a geographic connotation, it would be equally attributed to the word "hurricane" in Applicant's mark.

Of course, since the services are legally identical, a lesser degree of similarity between the marks is needed to support a finding of likelihood of confusion. The Board concluded that the similarities between the marks outweigh their differences.

Finally, Applicant urged that "Hurricane" is a widely used name in connection with restaurant services, and is therefore a weak formative. It submitted a listing of restaurant-type businesses using "Hurricane" as part of their names: some 50 in all. However, the probative value of this evidence was limited by the lack of evidence of the public's awareness of these business names. Moreover the number of instances was considerably less that in the Broadway Chicken and the Steve's Ice Cream cases.

Balancing the du Pont factors, the Board found confusion likely and it affirmed the refusals.

TTABlog comment: Will Applicant seek to add additional evidence regarding third-party use, in a review by way of civil action under Section 1071(b)? Or would that be as productive as spitting into the wind?

Text Copyright John L. Welch 2012.


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