Thursday, November 01, 2012

TTAB Finds OUT Confusable With IRON OUT, RUST OUT, DRAIN OUT, YELLOW OUT, LIME OUT, and WHIRL OUT for Cleaning Products

It was four, five, six strikes, you're out! at the TTAB. The Board sustained a Section 2(d) opposition to the mark OUT for "all-purpose cleaner; cleaning preparations," finding it likely to cause confusion with each of the registered marks IRON OUT, RUST OUT [RUST disclaimed], DRAIN OUT, YELLOW OUT, LIME OUT [LIME disclaimed], and WHIRL OUT for various specific cleaning products. Although Opposer IOIP claimed a family of "OUT" marks [not to be confused with an OUT house mark. - ed.] it failed to show that the marks "have been promoted as a family or that the public perceived the mark as a family." IOIP Holdings, LLC v. Ontel Products Corporation, Opposition No. 91197243 (October 9, 2012) [not precedential].

The goods of the application are so broadly worded as to encompass the more specific goods set forth in the pleaded registrations. For example, the IRON OUT registration covers "chemical compounds for use in removing foreign matter from water softeners," which can be classified as a "cleaning preparation." [Really? I wouldn't have thought that. - ed.]

Since the involved goods are legally identical, the Board must presume that they travel through the same normal channels of trade, to the same classes of consumers.

Because the goods are identical, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion. The Board found the marks to be "very similar inasmuch as each of the opposer's marks is comprised of a single, highly suggestive or descriptive term followed by OUT." The Board acknowledged that OUT is suggestive of cleaning preparations, but that same suggestive meaning is present in all the marks, "the only difference being that opposer's marks are more specific of the blemish or purpose of the cleaner." Moreover, there was no evidence that OUT is commonly used by third-parties in connection with similar goods such that OUT should be accorded a limited scope of protection.

Although the various initial terms in Opposer's marks are not to be ignored, the involved marks "remain similar based on the common element, OUT."

Weighing all the relevant factors, the Board found confusion likely and it sustained the opposition.

TTABlog comment: Applicant Ontel did not offer evidence or submit a brief. Perhaps that explains why its case went so swiftly down the drain.

Text Copyright John L. Welch 2012.


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