TTAB Test: Is BEACH HUGGY for Pillows Confusable With HUGGY PETS for Decorative Pillowcases?
The USPTO refused registration of the mark BEACH HUGGY for "pillows," finding the mark likely to cause confusion with the registered mark HUGGY PETS for "decorative pillowcases for children." The examining attorney also required disclaimer of the word "BEACH." How do you think this appeal came out? In re Comfort Revolution, LLC, Serial No. 86564232 (January 13, 2017) [not precedential].
Disclaimer requirement: The evidence showed that applicant's goods are pillows for use at the beach. The Board rejected applicant's nebulous contention that the word BEACH merely conveys a level of comfort and relaxation that may be attained at the beach, and it found the disclaimer requirement appropriate.
Likelihood of confusion The Board found the involved goods to be "related on their face" as complementary products, confirmed by third-party registration evidence and third-party websites where pillows and pillowcases are offered for sale under the same trademark. The channels of trade include the same stores, both online and brick and mortar. Applicant's goods, which are broadly identified, encompass pillows for children. In any case, adults are ultimately the consumers for pillows marketed to appeal to children.
As to the marks, the words BEACH and PETS are conceptually weaker than the word HUGGY because each of those two words describes or suggests the purpose or a feature of the goods.
Applicant argued that the differences in the wording and the placement of the words suffice to distinguish the marks, but the Board was not persuaded in view of the dominance of the word HUGGY.
Applicant’s mark gives the commercial impression of a pillow that is useful for hugging at the beach, while the mark in the cited registration conveys a huggable pet in the form of a stuffed pillowcase. Consumers are thus drawn to the "huggable" element of the respective pillows/pillowcases.
Applicant's use of the word HUGGY could lead consumers to believe that the registrant has expanded its product line to include different themes and uses. Viewing the marks in their entireties, the Board found that the similarities outweigh the differences.
The Board therefore concluded that confusion is likely, and it affirmed the Section 2(d) refusal.
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TTABlog comment: I would have reversed the 2(d) refusal. Isn't the word "huggy" suggestive and weak for a pillow?
Text Copyright John L. Welch 2017.
posted by John L. Welch @ 1/18/2017
2 comments
2 Comments:
I agree that these marks can co-exist without confusion.
The Board consistently forgets one fundamental principle of trademark law.
The following statement by the Court of Customs and Patent Appeals, in one of the frequently cited cases on this point, Sure-Fit Products Company v. Saltzson Drapery Company, 254 F.2d 158, 117 U.S.P.Q. 295, 297 (CCPA, 1958) in which “SURE FIT” and “RITE-FIT” were held not to be confusingly similar, is appropriate:
It seems both logical and obvious to us that where a party chooses a trademark which is inherently weak, he will not enjoy the wide latitude of protection afforded the owners of strong trademarks. Where a party uses a weak mark, his competitors may come closer to his mark than would be the case with a strong mark without violating his rights. The essence of all we have said is that in the former case there is not the possibility of confusion that exists in the latter case.
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