Tuesday, February 12, 2013

TTAB Deems "ANGEL" a Weak Formative in Computer Field, Reverses 2(d) Refusal

The existence of 14 third-party registered "Angel" marks in the computer field, coupled with the differences between the applied-for mark (immediately below) and the cited mark (second below), both for goods/services in the computer field, led the Board to reverse a Section 2(d) refusal.  In re Angel Computer Network Services, Inc., Serial No. 77438719 (January 25, 2013) [not precedential].

Applicant urged the Board to narrow the scope of the cited registration to on-line services by pointing to the narrow scope of the identified goods, namely, online help desk software. But the Board agreed with the examining attorney that there is "no basis in statute or practice to conclude that goods or services in one class should limit the services recited in another class." Certain of the goods and services pertaining to the use and maintenance of computer systems were "inherently related." Third-party registrations and website evidence supported the finding that the goods and services are "closely related." Consequently, it is presumed that they travel through the same, normal channels of trade to the same classes of consumers.

Turning to the strength of the cited mark, applicant submitted fourteen third-party registrations (in addition to the cited registration) in the field of information technology (IT), for marks that feature prominently the term “Angel." The Board agreed with applicant that "Angel," in the context of IT, is "suggestive of a rather routine commercial idea of being supportive ('be an angel and help me do this')." The Board found that "the term 'Angel' is fairly dilute in the IT field such that the relevant
purchasers are able to distinguish among those Angel-formative marks based upon small distinctions in the marks." Consequently, the cited mark is entitled to a narrower scope of protection.

Considering the marks at issue, the Examining Attorney argued that the word ANGEL dominates each mark, but applicant asserted that there is no per se rule that words dominate in word-plus-design marks. The Board agreed with applicant that there is no such general rule, concluding that registrant’s wings design "is a dominant portion of its composite mark." Applicant’s large letter “A” surrounded by a halo having a sunburst at its center is a prominent portion of applicant’s mark that further distinguishes the marks.

In the case at bar, registrant’s mark features a large, heavy wings design, followed by the much smaller designation, “angelpc.” Undoubtedly, the tagline “Permanent Online PC Support” has minimal source-distinguishing capabilities. In terms of appearance, it is the design element, rather than the words, that dominates registrant’s mark. The wings design is much larger than the term “angelpc,” and it is by far the most visually significant part of the mark. Accordingly, we disagree with the Trademark Examining Attorney that the word “Angel,” drawn from the larger designation angelpc, is the dominant part of registrant's mark, or even that the angelpc designation is entitled to more weight than the wings design portion of registrant’s mark.

Although the literal portions of the marks include the common identifiable and pronounceable word "Angel," that is not sufficient to support a finding that the marks are similar. The Board concluded that when the marks are compared in their entireties, they have sufficiently different commercial impressions to avoid a likelihood of confusion.

Read comments and post your comments here.

Text Copyright John L. Welch 2013.


At 2:42 PM, Anonymous Anonymous said...

Garbage from the EA forces Applicant to spend unnecessary time and money dealing w/ terrible objection. "Angel" is not "Exxon" and shouldn't be treated like it is.

At 2:11 AM, Anonymous Mitch Stabbe said...

Is there ANY rhyme or reason as to when the Board finds third party registrations probative as to the strength of a term and when it does not?


Post a Comment

<< Home