Wednesday, August 05, 2015

WYHA?" LOVE IS MY RELIGION" Confusable With "LOVE IS RELIGION" for Clothing, Says TTAB

The Board affirmed a Section 2(d) refusal to register the mark LOVE IS MY RELIGION for various clothing items, including shirts and T-shirts, finding the mark likely to cause confusion with the registered mark LOVE IS RELIGION for various clothing items, including shirts and T-shirts. Applicant pointed to the "difference of at least one word and at least two (2) letters" between the two marks, but Examining Attorney Lyndsey Kuykendall maintained that "it is likely that MY will get overlooked." Facing this PTO refusal, Would You Have Appealed? In re Peace Love World, LLC, Serial No. 85906882 (July 22, 2015) [not precedential].

Of course, since the goods are (in part) identical, a lesser degree of similarity between the marks is necessary to support a finding of likelihood of confusion. The Board agreed with the examining attorney that the word MY is likely to be overlooked, and it observed that consumers are likely to focus on the first part of the marks.

Applicant contended that the marks convey different meanings, with its mark connoting that "love is the personal religion of the speaker," whereas the cited mark "conveys to a consumer that 'love' is the only religion in the world and that no other religion can exist." The Board did not embrace the argument:

[I]n either formulation, love is the "speaker's" religion, whether by birth, choice or because there are no other religions. To the extent there are differences in connotation between the marks, they are not enough to prevent consumer confusion where the marks look and sound so similar, and are used for identical goods which are presumed to travel in the same channels of trade."

Applicant introduced a number of third-party registrations for marks comprising "LOVE IS" followed by additional words, but the Board showed applicant no love. It distinguished this case from the recent CAFC decision in Juice Generation (TTABlogged here), summarized by the Board as follows: "where shared components of marks at issue were the subject of a number of third-party registrations and the marks at issue had additional design and literal differences (not present in this case), finding of confusing similarity vacated and remanded. Here the marks are "so similar and used for identical goods."

Applicant established through website evidence that a number of "LOVE IS" marks contained in the third-party registrations are in use [LOVE IS ALWAYS LOVE, LOVE IS A VERB, LOVE IS LEGAL, LOVE IS THE KEY, LOVE IS BLONDE, and LOVE IS THE ANSWER], and therefore the phrase "LOVE IS" may not be entitled to a broad scope of protection (as explained in Juice Generation). But here none of the third-party marks "are even close to as similar to Registrant's mark as is Applicant's." None of the those marks include the word "religion" or any word that looks or sounds like it, or conveys the same meaning.

The Board concluded that, regardless of whether LOVE IS RELIGION is entitled to protection against the third-party marks cited by Applicant, it is entitled to protection against applicant's highly similar mark for partly identical goods.

Read comments and post your comment here

TTABlog comment: Well, I think the Juice Generation decision is going to cause some problems for the TTAB in the future vis-a-vis third-party registrations.

Text Copyright John L. Welch 2015.


At 9:44 AM, Anonymous Anonymous said...

Love is never having to say you are sorry to your client for appealing this batch of illusory fluff.


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