TTABlog Test: Is FLIP'N CHICKEN Confusable with FRICKIN' for Restaurant Services?
Fricker's opposed Samar Haddad's application to register the mark FLIP'N CHICKEN for "restaurant services, restaurants featuring home delivery, and take-out restaurant services" [CHICKEN disclaimed], claiming a likelihood of confusion with the registered mark FRICKIN’ for restaurant services. The services are legally identical, but what about the marks? Are they too close? How do you think this came out? Fricker’s Progressive Concepts, Inc. v. Samar Haddad, Opposition No. 91207770 (April 27, 2016) [not precedential].
Applicant Haddad argued that the marks differ in sound and appearance, and engender different commercial impressions because “FLIP’N” suggest[s] food prepared by flipping, whereas “FRICKIN’” refers to the ‘F’ word and to opposer's adoption of that meaning for its "amusing and memorable collection of marks."
The Board, however, compared FRICKIN' with the dominant portion of applicant's mark, FLIP'N, and found the involved marks to have striking similarities: they look similar and share the same cadence.
As to meaning, opposer's witness submitted printouts from THE ONLINE SLANG DICTIONARY and the URBAN DICTIONARY as evidence that the words “frick,”“fricking,” “flip,” and “flipping” are "socially acceptable euphemism[s] for the ‘F’ word." Applicant objected on the ground that these dictionaries are crowdsourced and therefore of unreliable origin. The Board agreed that the URBAN DICTIONARY has its limitations, but took judicial notice of like definitions of "fricking" and "flipping" from the THE AMERICAN SLANG DICTIONARY.
FRICKIN’ is a play on the surname of Opposer’s founder; it is memorable because of its euphemistic meaning. While FLIP’N might "suggest food prepared by flipping," FLIP’N also shares the same euphemistic meaning as FRICKIN’. *** Because FRICKIN’ creates such a strong commercial impression, and because FLIP’N and FRICKIN’ are so similar in appearance and cadence, and both words are euphemisms for the word “fucking,” when viewed in their entireties we find that Opposer’s mark FRICKIN’ and Applicant’s mark FLIP’N CHICKEN have highly similar commercial impressions.
The Board therefore found confusion likely and it sustained the opposition.
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TTABlog comment: I think applicant could have argued that his mark is a play on the phrase "flip him (or her) the bird," and therefore the marks have different, albeit vulgar, connotations.
Text Copyright John L. Welch 2016.