Test Your TTAB Judge-Ability: Are "ENDORPHINS" and "ENDORPHIN & Design" Confusable for Clothing?
Applicant Adam Khatib sought to register the mark ENDORPHINS for "hats; sweatshirts; t-shirts; tank tops," but Examining Attorney David Yontef refused registration on the ground of likelihood of confusion with the registered mark ENDORPHIN & Design (shown below) for various clothing items, including hats and t-shirts. Khatib appealed, arguing that the term ENDORPHIN is a weak-formative in view of seven existing registrations, two of which were for clothing: ENDORPHIN WARRRIOR; GOT ENDORPHINS?; ENDORPHIN SPORTS; SWIM WITH THE ENDORPHINS; EF ENDORPHIN FITNESS; ENDOMONDO FREE YOUR ENDORPHINS; AND NDORFNZ. How do you think this came out? In re Adam Khatib, Serial No. 85556033 (January 22, 2014) [not precedential].
The goods of the application and cited registration overlap, and the Board must presume that these goods travel through the same channels of trade to the same classes of consumers. The goods may be inexpensive and purchased without a great deal of care. All of these factors favored a finding of likely confusion.
As to the marks, the word ENDORPHIN is the dominant portion of the cited mark, since the stylization and design element are minimal. To the extent consumers would recognize the design as "a molecular design of the chemical endorphin," that merely visually represents the word ENDORPHIN and does not distinguish the marks. The Board concluded that the marks are sufficiently similar in appearance, sound, meaning, and connotation that confusion is likely to occur.
As to the seven registrations submitted by applicant, none of them consist of the words ENDORPHIN or ENDORPHINS alone or with a minimal design element. Five of the registrations are for services, not clothing, and the two for clothing (ENDORPHIN WARRIOR and GOT ENDORPHINS?) are for marks that create commercial impressions that are "quite different from" applicant's and registrants' marks. Moreover, third-party registrations are of limited value in the absence of evidence of use of the marks and of the public's familiarity with them.
And so the Board concluded that confusion is likely, and it affirmed the refusal to register.
Read comments and post your comment here.
TTABlog note: So how did you do? Do you think this is a WYHA?
Text Copyright John L. Welch 2014.