Test Your TTAB Judge-Ability: Are These Two Design Marks for Clothing Confusable?
Abercrombie & Fitch opposed an application to register the design mark shown below left, for various clothing items, including jeans, claiming a likelihood of confusion with its registered design mark shown below right, for jeans and other items. A&F claimed fame, but its proofs were inadequate to meet the clear evidence standard. How do you think this came out? Abercrombie & Fitch Trading Co. v. Artemides Holdings Pty. Ltd., Opposition No. 91193275 (May 6, 2014) [not precedential].
Because the good are in part identical [Strike One!], the Board must presume that they travel through the same, normal channels of trade to the same classes of consumers [Strike Two!].
A&F claimed that its mark is famous, but it failed to meet its obligation to "clearly prove it." In A&F's advertising and sales materials the pleaded mark was not sufficiently independent from the ABERCROMBIE & FITCH mark. When a mark is used in tandem with a famous house mark, a party must show that its product mark has independently achieved fame. Here it was impossible for the Board to assess the impact of the design mark on consumer perception. However, the Board did find that the mark has "a strong marketplace presence." [Foul tip.]
Applicant asserted that "back pocket jeans designs" are in wide use in the designer jeans market, and so A&F's design is not unique. It pointed to seven third-party registrations for pocket stitch designs, and specimens of use from eleven registrations files. However, the Board observed, such evidence does not establish the extent of use of the marks or any impact they may have had on consumers. Therefore that evidence had little probative value, and this factor was neutral. [Ball One!].
Turning to the marks, the Board first noted that when the involved goods are identical, a lesser degree of similarity between the marks is required to support a finding of likely confusion. Of course, a side-by-side comparison of the marks is not the proper approach. "The proper focus is on the recollection of the average customer, who retains a general rather than specific impression of the marks."
Applicant argued that its mark is "evocative of an Egyptian hieroglyph and, at the same time, could suggest to viewers the intersection of two chain-links. [Opposer's] is a standard back-pocket design that does not evoke similar connotations."
The Board noted that when placed side by side, specific differences in the marks are detectable "and those differences might well be enough to distinguish one from the other." But it is highly unlikely that the two marks at issue would be viewed together. When the marks are viewed at different times on identical goods, "the recollection of the first viewed mark will be a general impression most likely devoid of the details noted by applicant."
Consideration must also be given to the fact that a purchaser's recollection of design marks is often of a general and hazy nature. So considered, it is the intersecting arcs of the marks that impresses or provides the initial impact when viewing both marks. The overall similarity of the marks is such that there is reasonable likelihood of purchasers attributing identical products sold thereunder to a single source. [Strike Three!]
Balancing the relevant duPont factors, the Board found confusion likely and it sustained the opposition.
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Text Copyright John L. Welch 2014.