TTAB Grants Motion for Judgment on the Pleadings Due to Vast Dissimilarity Between Marks
Rarely does the Board grant a motion for judgment on the pleadings (FRCP 12(c)), but that's what happened in this opposition proceeding. Opposer Jackson Family Farms claimed that the word-and-design mark shown below, for "wines made from grapes from Côtes de Provence in accordance with adapted standards" is likely to cause confusion with its common law mark VERITÉ for wine and with its registered mark VERITÉ for "alcoholic beverages except beers." Jackson alleged that the marks are "virtually identical" but the Board saw things quite differently. Jackson Family Farms, LLC v. Grands Domaines Du Littoral, Opposition No. 91274194 (January 24, 2023) [not precedential].
A motion for judgment on the pleadings tests only the undisputed facts in the pleading, supplemented by any facts of which the Board takes judicial notice. All well-pleaded facts set forth by the non-moving party must be taken as true. Conclusions of law are not deemed admitted. All reasonable inference must be drawn in favor of the non-movant. If there are no genuine issues of material fact, judgment may be entered.
On this motion, the applicant conceded priority, as well as the relatedness of the goods and the classes of purchasers. It asked for judgment based on the single factor of the dissimilarity of the marks. Opposer Jackson argued that the marks are similar because applicant’s mark completely encompasses Jackson's mark, and because VÉRITÉ is the dominant portion of Applicant’s "tag line."
The Board found no genuine dispute that the marks at issue are distinct in appearance: twenty-two words versus one word. Moreover, the words CHATEAU LA GORDONNE in applicant’s mark are displayed in a much larger and different color font when compared to the other wording in the mark, making CHATEAU LA GORDONNE the dominant element. That larger wording, combined with the design elements, results in a mark that is "visually readily distinguishable from” Jackson's mark.
Finding the first DuPont factor to be dispositive, the Board granted the motion and dismissed the opposition.
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TTABlogger comment: Faster than summary judgment.
Text Copyright John L. Welch 2023.
posted by John L. Welch @ 2/07/2023
2 comments
2 Comments:
Was the Applicant lucky to get the motion granted? Where are the 22 words? Why wasn't the French to English translation necessary in this case? If I did this, the TTAB would probably deny it and if carried on TTBlog, would be laughed at by the attorneys asking "what was he thinking!"
Some background facts having filed this motion include but are not limited to the discovery period was closed and other than the similarity issue, there were no arguments in support of any other factor. Often applicant's are bullied and so many cases simply default. Considering one can bail at any point up to a decision on the merits it made sense to try. Briefing a motion on the pleadings relying on the dissimilarity between marks is little more than saying, "two out of three reasonable judges could not possibly be confused". I was actually hoping for a two run homer. There is so little precedent on the granted side the Board might have added - the law is worth repeating - we can provide a reality check where the only decision is solely in our bailiwick. The Opposer's cause was not aided by stating the two marks are "virtually identical".
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