Precedential No. 6: "PMONEY" Confusable with "POPMONEY" for Electronic Funds Transfer, Says TTAB
The Board highly commended the parties for choosing to resolve this Section 2(d) opposition via the ACR regime. The parties agreed to forego discovery and disclosures, and submitted stipulations of facts and briefs with attached evidence, but no testimony. The Board sustained the opposition, finding the mark PMONEY likely to cause confusion with the registered mark POPMONEY (in standard character and design forms), both for financial services that included electronic funds transfer. Fiserv, Inc. v. Electronic Transaction Systems Corp., 113 USPQ2d 1913 (TTAB 2015) [precedential].
The parties agreed that if ACR "did not turn out to be the best route for them, then they could opt out of it later." They conferred with the interlocutory attorney on two occasions with regard to the stipulations of fact. [The opposition was filed on December 31, 2013, and decided on February 27, 2015].
Turning to the merits, because the respective services of the parties overlapped in part, the Board presumed that the channels of trade and classes of purchasers also overlapped. These factors weighed heavily in opposer's favor. Moreover, the Board observed for the umpteenth time that when the involved services are identical (or identical-in-part) a lesser degree of similarity between the marks is necessary to support a finding of likely confusion.
Applicant claimed that "pop" has a descriptive meaning as applied to opposer's services, but the evidence was scanty and unpersuasive. There was no evidence that the shared term, consisting of P plus MONEY, is commonly used by third parties or has any meaning in relation to the services.
The Board concluded that the marks are substantially similar, finding it likely that applicant's mark PMONEY would be perceived as an abbreviation of POPMONEY, since consumers "have a universal habit of shortening full names - from haste or laziness or just economy of words."
Applicant contended that purchasers of the involved services are sophisticated, but applicant conceded that the relevant consumers include the general public. The Board observed that "the applicable standard of care for a likelihood of confusion analysis is that of the least sophisticated consumer," and there was no evidence that the general public are sophisticated or exercise a high degree of care in connection with these services. In any event, even sophisticated consumers may be confused, especially when, as here, the services are identical in part. Finally, the Board noted, services like those of the parties here are offered to the general public at low prices or even for free.
And so the Board sustained the opposition.
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Text Copyright John L. Welch 2015.