TTABlog Test: Is THREEGUN Confusable With THERAGUN For Massage Apparatus?

Therabody, Inc. opposed an application to register the mark THREEGUN (in slightly stylized form) for various medical devices and products, including massage apparatus, on the ground of likelihood of confusion with its registered mark THERAGUN for various medical devices, including massage apparatus. So, the goods overlap, but what about the marks? How do you think this came out? Therabody, Inc., by change of name from Theragun, Inc. v. Shanghai Three Gun (Group) Co., Ltd., Opposition No. 91264121 (November 17, 2022) [not precedential] (Opinion by Judge Jyll Taylor).

Motion to Amend I.D.: After the close of Opposer's testimony period, Applicant Shanghai Three Gun moved to amend its identification of goods but the Board deemed the motion untimely. "Because Applicant failed to file its motion early enough to provide Opposer with sufficient notice of its proposed change before trial, as is apparent by Opposer’s attempt to supplement its record with the untimely submissions appended to its brief, Applicant’s motion to amend must be denied."

Likelihood of Confusion: With regard to the overlapping goods, massage apparatus, the Board presumed that they travel in the same trade channels to the same classes of consumers. The purchasers of the goods include ordinary consumers.Since there were no limitations as to classes of purchasers or price of products, the Board based its decision on the least sophisticated potential purchasers. It found the purchaser sophistication and care factor to be neutral.

As to actual confusion, since Shanghai has not exported any massage apparatus to the United States, "there has been no opportunity for actual, or potential, confusion to occur." And so, the Board found this DuPont factor to be neutral in its analysis.

The evidence showed that the term GUN is often used to describe certain types of massage apparatus, and "the THERA portion of Opposer’s THERAGUN mark may be perceived by consumers as a shortened form of the word 'therapy.'" The Board concluded that THERAGUN is "somewhat suggestive of the identified massage apparatus." As to commercial strength, in light of "Opposer’s advertising presence across multiple social media platforms and the unsolicited exposure in the written press and online, as well as the various industry accolades," the Board found that "Opposer has established that its pleaded registered THERAGUN mark has garnered some renown, which is not offset by its somewhat suggestive nature." The Board concluded that the THERAGUN mark "is entitled to a slightly broader scope of protection than that to which marks with inherently distinctive terms are entitled."

Turning to the marks, the Board found them to be more dissimilar than similar, "[p]rincipally because Applicant’s mark begins with the clearly recognizable English word 'three' and Opposer’s mark begins with what is likely to be recognized by consumers as a shorted form of the word 'therapy,' given that Applicant’s devices are touted and recognized as 'percussive therapy devices.'"

The Board found the marks to be dissimilar in appearance and sound. As to connotation and overall commercial impression, "[c]onsidering the plain meanings of the words and terms that comprise the two marks, even when viewed against the backdrop of identical massage apparatus, [the marks] would likely be perceived by consumers as conveying different connotations and commercial impressions."

Concluding that the first DuPont factor weighed heavily in Shanghai's favor, the Board dismissed the notice of opposition.

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Text Copyright John L. Welch 2022.