WYHA? TTAB Finds FREESTYLE for Comforters Confusable With FREESTYLE for Pillows

The Board affirmed a Section 2(d) refusal of FREESTYLE for "comforters, namely, comforters and comforter sets and comforter sets sold in a bag," finding the mark likely to cause confusion with the identical mark registered for "pillows." Applicant pointed to nine third-party registrations in class 20 for marks incorporating the word "freestyle," but the Board was not impressed. Examining Attorney Meredith Maresca relied on other third-party registrations to show the relatedness of the goods. In re BCP Home Inc., Serial No. 87202411 (August 13, 2018)[not precedential] (Opinion by Judge Marc A. Bergsman).

Strength of the Cited Mark: The description of goods in the nine third-party registrations proffered by applicant were not as close to registrant's pillow as are applicant's comforters and comforter sets. Moreover, there was no evidence of usage of these third-party marks. "This is a far cry from the large quantum of evidence of third-party use and third-party registrations that was held to be significant" in Jack Wolfskin and in Juice Generation.

Similarity of the Marks: They are identical.

Similarity of the Goods: The examining attorney submitted ten third-party registrations covering comforters and pillows, as well as numerous websites showing the same mark identifying pillows, comforters, and comforter sets. The Board therefore concluded that the goods are related. This evidence also established that the involved goods travel in the same marketing channels to the same consumers.

Conclusion: The Board found confusion likely, and so it affirmed the refusal.

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TTABlog comment: Well, would you have appealed?

Text Copyright John L. Welch 2018.