Test Your TTAB Judge-Ability: Are These Design Marks for Batteries Confusingly Similar?

Lithionics, LLC sought to register the design shown below left for "batteries, electrical cells and batteries" [sic!], but Braille Battery opposed on the ground of likelihood of confusion with its registered mark shown below right, for "batteries and battery chargers." The Board noted that "Li" is the symbol for the chemical element "lithium," which has an atomic number of "3," and that lithium is especially used in storage batteries. How do you think this came out? Braille Battery, Inc. v. Lithionics, LLC, Opposition No. 91198482 (January 8, 2013) [not precedential].

Evidentiary issues: The Board began by dealing with a battery of evidentiary issues. Opposer Braille cured the procedural defects in its Notice of Reliance by amending the notice to indicate the relevance of certain documents. Its submission of a recently-issued registration was proper because the registration issued before Braille's testimony period closed, from an application that was identified in the notice of opposition. Finally, Braille's Florida state registrations were admissible, for whatever they might be worth [little or nothing - ed.].

Likelihood of confusion: The goods of the parties partly overlap, and those overlapping goods presumably travel to the same consumers through the same channels of trade. Moreover, when the goods are identical, a lesser degree of similarity between the marks is needed to support a finding of likely confusion.

The Board took judicial notice that "Li" is the symbol for the chemical element "lithium," whose atomic number is "3." Moreover, "Lithium, the lightest metal known, ... is used especially in alloys and glass, and in ... storage batteries." Consequently, its atomic number and chemical symbol (Li3) are descriptive of batteries. In view of that descriptiveness, the Board gave greater weight to the arbitrary elements of Lithionics's mark when comparing it to Braille's mark.

 As to Braille's mark, there was no evidence that the representations of a round battery cell and a positive terminal are descriptive of batteries. The Board also took into consideration the letter "b" and the arrow design, but again there was no evidence that those elements have any meaning.

The Board concluded that the marks are similar in appearance. citing several prior Board decisions finding confusing likely between the following pairs of marks.

Resolving any doubts in favor of the prior registrant, the Board sustained the opposition.

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TTABlog comment: Note that Braille's registration issued on an application filed after the opposed application was filed. Yet once the registration issued, Braille was accorded priority. Does this make sense? Should Braille be required to prove actual use prior to applicant's filing date? Once the registration issued, should Applicant have been given the opportunity to petition to cancel the registration via a counterclaim?

Text Copyright John L. Welch 2013.