Test Your TTAB Judge-Ability: is ATLANTA'S HOMETOWN AIRLINE Confusable With CHICAGO'S HOMETOWN AIRLINE?

Delta Air Lines applied to register the mark ATLANTA'S HOMETOWN AIRLINE for "transportation of goods, passengers and travellers by air" [AIRLINE disclaimed], but the USPTO refused registration under Section 2(d) in view of the registered mark CHICAGO'S HOMETOWN AIRLINE, owned by United Air Lines, for "transportation of persons, property and mail by air" [AIRLINE disclaimed]. Delta argued that the term "hometown airline" is inherently weak, and that purchasers will be inclined to focus on the first word of each mark and will recognize the differences between the two cities. So, did Delta arguments achieve lift-off? How do you think this came out? In re Delta Air Lines, Inc., Serial No. 85196441 (August 27, 2014) [not precedential].

The Board perceptively pointed out that the "crux" of the issue is not "whether Chicagoans or Atlantans or even United States consumers in general are likely to confuse the city of Chicago with the city of Atlanta. Rather, the question is whether the sources of the respective airline passenger services doing business under these similar taglines are likely be confused."

Delta urged that the Board look at the word "hometown" from the viewpoint of the airline: an airline
can have headquarters in only one location, its "hometown." Therefore, when "hometown airline" is coupled with two very distinct cities, the composite phrases distinguish the services of United Airlines (Registrant, with its home in Chicago) from the services of Delta Air Lines (Applicant, with its home in Atlanta).

The evidence of record, however, did not establish that relevant consumers know or care that United is headquartered in, Chicago, Delta in Atlanta, American in Fort Worth and Southwest in Dallas.The Board therefore agreed with Examining Attorney Toby Ellen Bulloff that these two mark "could well create for prospective consumers the impression that a single anonymous source had chosen the same laudatory or nostalgic tagline for multiple cities."

Moreover, the Board additionally noted, the term "hometown" could be seen as referring to the hometown of the airline customer, in that an airline may have a hub in a given city and the airline thus might be considered the "hometown airline" for that city.

As to the argument that "hometown airline" is weak, Applicant Delta cited a number of co-existing registrations for marks that include the word "hometown," for banks, newspapers, and grocery stores. The Board found these registrations of little relevance to airlines, and noted that the cited mark is the only registered mark for airline services that incorporates the "hometown airline" phrase. The fact that the cited registration issued under Section 2(f) does not mean that the registered mark is not entitled to protection against registration of a "highly-similar mark for closely-related services."

The Board concluded that confusion is likely, and it affirmed the refusal to register. It also affirmed the PTO's requirement that applicant disclaim the word "Atlanta's."

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TTABlog note:  So what do you think? As an Atlanta White Sox fan, I am somewhat confused.

Text Copyright John L. Welch 2014.