Test Your TTAB Judge-Ability: Is HAUTE MESS for Hair Products Confusable with HOT MESS for Sun Tan Products?
Applicant Product Innovations Research LLC sought to register the mark HAUTE MESS for various hair care products, but the PTO refused registration, finding the mark likely to cause confusion with the registered mark HOT MESS for various sun tan products. Applicant appealed. How do you think this mess came out? In re Product Innovations Research LLC, Serial No. 77912065 (January 22, 2014) [not precedential].
Third-party website evidence showed that consumers may see the involved goods offered under the same trademark, and several third-party registrations included both types of goods. Online stores sell both types of products, and so the Board concluded that the channels of trade and classes of consumers overlap. The Board found that these duPont factors favored a finding of likely confusion.
As to the marks, the Examining Attorney argued that HAUTE MESS and HOT MESS are phonetically similar, since HAUTE is often mispronounced as HOT. Applicant argued that the terms have "verifiable pronunciations that are demonstrably different from each other." The Board recognized that the marks sound different when pronounced correctly, but the record "does support a finding that despite the verifiable pronunciation, potential customers may still pronounce HUATE as HOT."
Nonetheless, the Board found the elements of meaning and commercial impression to be pivotal. There was no dispute that HOT MESS is a "well-known expression referring to a certain state [of] appearance or behavior." In contrast, HAUTE means "fashionable or high-class as in HAUTE COUTURE."
The obvious double entendre in applicant’s mark creates a very different meaning and humorous play on words wholly absent from registrant’s mark. In addition, registrant’s mark HOT MESS used in connection with its skin care creams directed to tanning and sun protection evokes the literal meaning of HOT (sun) and MESS (creams), or, as applicant states, "draws associations to the heat of the sun or a tanning lamp" (App. Br. p. 7) -- meanings that are wholly absent from applicant’s mark used in connection with the hair care products. While both marks may reference the slang meaning of HOT MESS, in the context of their respective goods, the shared phrase has a very different commercial impression due to each of their separate and distinct secondary meanings.
Thus considering each mark in the context of its goods, the Board found confusion not likely, and it reversed the refusal to register.
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Text Copyright John L. Welch 2014.