CAFC Affirms TTAB: "SPARK LIVING" Confusable With "SPARK" for Related Real Estate Services
In a straightforward, but nonetheless precedential, ruling the CAFC upheld the Board's decision affirming a refusal to register the mark SPARK LIVING for "leasing of residential real estate; residential real estate listing; residential real estate service, namely, residential rental property management; specifically excludes commercial property and office space" (LIVING disclaimed). The Board found a likelihood of confusion with the registered mark SPARK for brokerage, leasing, and management of commercial property, offices, and office space. Appellant Charger challenged the Board's factual findings on five Du Pont factors, but the CAFC ruled that the Board's decision was supported by substantial evidence. In re Charger Ventures LLC, In re Charger Ventures LLC, 2023 U.S.P.Q.2d 451 (Fed. Cir. 2023). [precedential].
The Board found that, despite some commercial weakness in the cited mark and despite the sophistication of relevant consumers, the was "insufficient evidence in the record" to overcome the "close similarity" of the marks and the relatedness of the services.
Charger argued that the Board improperly dissected its mark and gave improper weight to the word SPARK in light of third-party uses of the term. The CAFC pointed out, however, that the Board compared the marks "in their entireties" and based its findings on the "overall commercial impression of the marks as a whole." The court found no error in the Board's focusing on the dominant portion of Charger's mark.
Charger claimed that the involved services are different in nature and are offered in different trade channels. The USPTO, in response, pointed to "dozens of registrations" in the record, covering both residential and commercial real estate services, and noted that the involved application and registration are not limited as to trade channels. The CAFC concluded that substantial evidence supported the Board's findings on these factors.
Charger next contended that the consumers for its services are substantially different from those of the registrant's services. The USPTO argued that the record lacked evidence to support that argument, and further that "people who seek commercial real estate services live somewhere.” The CAFC concluded that the "potential overlap of consumers," coupled with the axiom that even careful or sophisticated customers are not immune from source confusion, constituted substantial evidence supporting the Board’s determination on this factor.
The CAFC agreed with the Board that the evidence of third-party use of the term SPARK, although demonstrating "some" degree of weakness, "was not enough to render it unprotectable." The Board properly considered that the cited mark enjoyed a presumption of validity under Section 7(b) of the Trademark Act.
Finally, Charger charged the Board with failing to indicate the weight that it assigned to each DuPont factor and therefore that its analysis lacked substantial evidence. The CAFC agreed that, for purposes of appellate review, the Board "must provide a reasonable explanation for its findings, explaining the weight it assigned to the relevant factors." However, an appellate court will "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
Here, the agency’s path may be reasonably discerned. Based on the record as a whole, there is sufficient evidence from its assessment of the relevant DuPont factors to support the Board’s finding of a likelihood of confusion of Charger’s mark SPARK LIVING.
And so, the CAFC affirmed the Board's decision.
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TTABlogger comment: The CAFC last overturned a TTAB decision in an ex parte Section 2(d) case was In re Gould Mortg. Co., 912 F.3d 1376, 129 U.S.P.Q.2d 1160 (Fed. Cir. 2019). The appellate court concluded that the Board had failed to consider pertinent evidence and arguments under the eighth Du Pont factor (lack of actual confusion), and so it remanded the case for reconsideration in light of all the evidence.
Text Copyright John L. Welch 2023.
posted by John L. Welch @ 4/18/2023
3 comments
3 Comments:
I find it interesting that the CAFC stated "people who seek commercial real estate services live somewhere". That seems to me to go against the general "rule" that if the class of consumers are different (e.g. general public consumers vs. professional consumers) then they are considered different enough so that confusion is generally considered not possible (because the marks will not be encountered by the same consumers under conditions that will cause confusion). It is usually ignored that, for example, doctors who purchase medical equipment, are also general consumers who purchase cold medicine. It may even be that there are 3rd party registration. that include cold medication and medial equipment but they are irrelevant if the consumers of those goods do not overlap. That was ignored here (based on the quote I began this rambling with.
In its recent, non-precedential OXIPURITY decision, the CAFC noted that "it is not necessary to show that the consumers are the same to establish a likelihood of confusion. Though the buyers may be different, they may have overlapping knowledge due to market conditions or channels of trade such that purchasers are familiar with both products." So the CAFC seems to have a liberal view of customer "overlap."
If, as your comment indicates, the 2019 decision of In re Gould was the last time the CAFC overturned a TTAB decision, it was a short lived victory. On remand, the Board reaffirmed its finding that confusion was likely and refused registration under §2(d). See In re Guild Mortgage, Serial No. 86709944 (TTAB 2020). Further emphasizing that one needs to choose carefully when to appeal a Board decision.
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