Test Your TTAB Judge-Ability: Are SUN SOUL ORCHESTRA and SOUL SUN Confusable for Musical Recordings?
Stephen L. Theard sought to register the mark SUN SOUL ORCHESTRA for musical recordings and related goods [ORCHESTRA disclaimed], but the PTO refused registration in view of the mark SOUL SUN for overlapping goods and related services. Of course, it all boiled down to the similarity of the marks. How do you think this came out? In re Stephen L. Theard, Serial No. 85719385 (May 14, 2014) [not precedential].
Applicant maintained that his mark immediately informs the consumer that the mark relates to an orchestra of practicing musicians, but the Board found the distinctive phrase SUN SOUL to be the dominant portion of the mark. "Applicant's mark thus incorporates as its dominant portion the cited registered mark in its entirety, merely transporting the terms 'sun' and 'soul.'" The Board found that this transposition did not change the overall commercial impression of the mark, and it concluded that the marks are confusingly similar in meaning and overall commercial impression.
Theard contended that his goods and their channels of trade are distinguishable from those of registrant because applicant offers goods "related to only one source, the band 'Sun Soul Orchestra.'" Applicant's identified goods were all described as the products of "a musical group." The Board pooh-poohed that distinction because the goods listed in the cited registration also may include recordings of music played by "a musical group."
Finally, Applicant Theard argued that the involved goods and services would be purchased with a high degree of care. However, there was no evidentiary support for that assertion, and in any case even careful consumers are not immune from source confusion.
Balancing the relevant duPont factors, the Board found confusion likely and it affirmed the Section 2(d) refusal.
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TTABlog note: Well, do you agree with the Board? How do you like the song? Or not?
Text Copyright John L. Welch 2014.