WYHA? TTAB Finds NOW YOGA AND FITNESS Confusable With NOWYOGA for Yoga Instruction
It's been a while since I posted a WYHA? Here's a "good" one. In a six-page decision, the Board affirmed a Section 2(d) refusal to register NOW YOGA AND FITNESS for "yoga instruction" [YOGA AND FITNESS disclaimed], finding the mark likely to cause confusion with the registered mark NOWYOGA (standard character form) for the identical services. Would You Have Appealed? In re Now Yoga, LLC, Serial No. 85677969 (January 27, 2015) [not precedential].
Because the involved services are identical, the Board must presume that the trade channels and marketing conditions are also identical. Applicant lamely argued that there are obvious differences: its mark is "used to attract a very specific consumer, namely, adults seeking yoga instruction and other body work and healing services as well as related accessories." As to the cited mark, applicant contended, "it can only be assumed that the ... mark was used to attract those seeking Buddhism based yoga and QiGong classes."
The Board pointed out one again, however, that the services recited in the application or cited registration cannot be narrowed by extrinsic evidence. Neither the application or the registration contains any restrictions in trade channels or classes of consumers. Regarding the contention that consumers of yoga instruction are "sophisticated," the Board found no support in the record.
Turning to the marks, applicant incisively observed that they are not identical. Examining Attorney Zachary B. Cromer maintained that the marks are highly similar in sound, appearance, and connotation, and that the space between the words "new" and "yoga" in applicant's mark is irrelevant. The Board agreed, noting that the disclaimed words "And Fitness" do little to distinguish the marks.
Finally, applicant made of record three registrations for marks containing the word "now" for yoga instruction services: HAPPY NOW YEAR!, Serenity Now Yoga, and NOW & ZEN STRENGTH TRAINING & YOGA CONDITIONING. The Board found this evidence non-probative: first, there was no evidence that these marks are in use or that the public is familiar with them, and second, each of these mark creates a substantially different commercial impression than the two marks at issue here.
And so the Board found confusion likely and it affirmed the refusal.
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Text Copyright John L. Welch 2015.