TTABlog Test: Are SWEET VIBRATIONS and GOOD VIBRATIONS Confusable for Adult Sexual Products?

Barnaby Ltd. petitioned to cancel a registration for the mark SWEET VIBRATIONS for "adult sexual stimulation aids, namely, vibrators,” and opposed an application to register the same mark for "adult marital and sexual aids, namely, massagers, vibrators and stimulators," claiming a likelihood of confusion with its registered mark GOOD VIBRATIONS for "adult sexual aids, namely, artificial phalli,” and “retail and mail order services, featuring, sexually oriented products such as marital aids, electronic devices media and books." The goods overlap, but what about the marks? How do you think this case came out? Barnaby Ltd. v. Be Goods LLC, Opposition No. 91241053 and Cancellation No. 92068505 (Consolidated) (June 3, 2020) [not precedential] (Opinion by Judge Christopher Larkin).

Opposer/Petitioner Barnaby alleged that the mark GOOD VIBRATIONS is famous for adult sexual products. The Board discussed at length Barnaby's evidence of fame, but concluded that its proof fell short of the clear evidence standard. However, the Board did find that the mark " has some renown and is entitled to more than 'the normal scope of protection to which inherently distinctive marks are entitled.'"

Not surprisingly, the Board found the involved goods and services to be overlapping or related, and presumed that the overlapping goods travel in the same channels of trade to the same classes of consumers. As to the overlapping goods, a lesser degree of similarity between the marks is needed to support a finding of likelihood of confusion.

Turning to the marks, Barnaby argued that they share the same meaning, the same basic format and structure, and the same word VIBRATIONS. Applicant/Respondent Be Goods maintained that Barnaby's mark brings immediately to mind The Beach Boys' classic hit [Help Me Rhonda? ed.], whereas SWEET VIBRATIONS has no such association.

The Board agreed with Be Goods that if SWEET VIBRATIONS has a dominant portion, it is SWEET, noting that VIBRATIONS is disclaimed. GOOD VIBRATIONS, however, is a unitary mark since the phrase is recognized in the American vernacular.

Although the average consumers typically retains only a general impression of a mark, here the general impression of GOOD VIBRATIONS "is likely to be quite specific because the record shows that 'good vibrations' is a familiar phrase in colloquial American English."

The Board noted that “the members of this panel independently and spontaneously viewed the [mark] as reminiscent" of The Beach Boys' song, Good Vibrations. The Board had no doubt that "many American consumers, particularly the large cohort of Baby Boomers in the U.S. population, would also immediately view Opposer’s GOOD VIBRATIONS mark as reminiscent of the title of The Beach Boys’ song, and that for such consumers the mark would evoke the song’s music and lyrics."

The song’s lyrics, which include the refrains “I’m pickin’ up good vibrations, she’s giving me excitations,” “Good good good good vibrations,” and “Gotta keep those lovin’ good vibrations a happenin’ with her,” use the phrase “good vibrations” in its colloquial sense to describe a positive “general emotional feeling one has from another person or a place, situation, etc.’.” The Good Vibrations title and lyrics thus corroborate what Opposer acknowledges, that the phrase “good vibrations” has “long been in usage,” and accordingly is familiar to most Americans. [citations to record omitted]

Be Good's mark SWEET VIBRATIONS "is not a familiar phrase with a familiar meaning." The Board found the most applicable of the many definitions of "sweet" to be "pleasing to the senses," connoting "the tactile pleasure that Applicant’s website calls the “big ‘O” and that is the desired end result produced by the vibrations of Applicant’s “gspot rockin’ vibrators,” and other goods when they are applied to the erogenous areas of the body." [citation to record omitted].

That is a different and much earthier connotation than the connotation of GOOD VIBRATIONS as “a positive, pleasing, agreeable or ‘very good’ emotional feeling or atmosphere that is intuitively sensed or experienced by someone.” The connotation of SWEET VIBRATIONS is tangible and palpable; the connotation of the familiar expression GOOD VIBRATIONS is abstract and atmospheric. Simply put, when the two marks are considered in their entireties, they give off different “vibes.” We find that the marks are different in connotation and commercial impression. [citation to record omitted].

The Board concluded that the marks differ in appearance, sound, and connotation, and commercial impression, and that the first du Pont factor "weighs strongly against a finding of a likelihood of confusion."

Conclusion: Balancing the relevant du Pont factors, the Board found the first du Pont factor to be decisive, and it dismissed the opposition and denied the petition for cancellation.

Read comments and post your comment here.

TTABlogger comment: The temptation to pun was great but I resisted, since this is a family blog.

Text Copyright John L. Welch 2020.