The CAFC reviews the Board’s legal conclusions without deference and its factual findings for substantial evidence. In re Pacer Tech., 338 F.3d 1348, 1349 (Fed. Cir. 2003). Likelihood of confusion is a question of law based on underlying findings of fact. In re Chatam Int’l Inc., 380 F.3d 1340, 1342 (Fed. Cir. 2004). The determination of likelihood of confusion is based on the factors set forth in DuPont, 476 F.2d at 1361. In assessing the likelihood of confusion, the marks must be considered in their entireties as to appearance, sound, meaning, and commercial impression.
Although the word MAYA has established meanings, there was insufficient evidence to support opposer's assertion that consumers would perceive MAYARI as MAYA- and -RI. "Even assuming that consumers were to dissect MAYARI into separate components, Oakville failed to demonstrate to the Board why the dissection would be 'MAYA-RI,' not 'MAY-ARI' or 'MA-YARI.'"
As to sound, there was no evidence that consumers would emphasize "MAYA" in pronouncing MAYARI.
The evidence supported the Board's finding that MAYA is a familiar word, whereas MAYARI has no recognized meaning to U.S. consumers. The Board did not err in finding that "most customers would likely perceive MAYA as a female personal name or the name of the pre-Columbian civilization" and would "perceive MAYARI as a coinage without meaning."
Accordingly, the Board correctly found that the unfamiliar MAYARI is distinguishable from the familiar MAYA, and that the marks, considered in their entireties, are dissimilar as to appearance, sound, meaning, and overall commercial impression. We also conclude, on this record, that the Board did not err in balancing all relevant DuPont factors and in determining that the dissimilarity of the marks was sufficient to preclude a likelihood of confusion.
The court observed once again that "a single DuPont factor may be dispositive in a likelihood of confusion analysis, especially when that single factor is the dissimilarity of the marks."
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TTABlog comment: That pronunciation thing is always a problem for the opposer. How would you prove the common pronunciation of a coined term?
Text Copyright John L. Welch 2016.