TTABlog Test: Is "DEATH FROM ABOVE" Confusable With "HUNT FROM ABOVE" for Hunting Stands?
The USPTO refused to register the mark DEATH FROM ABOVE for hunting stands, finding confusion likely with the registered mark HUNT FROM ABOVE for "hunting stands for use in trees; seats especially adapted for hunting stands for use in trees." The goods overlap, but what about the marks? Applicant argued that consumers are more likely to focus on the distinctions between the words DEATH and HUNT because they appear as the first portions of the two marks. How do you think this came out? In re Heartland Climbers, LLC, Serial No. 90885309 (September 15, 2023) [not precedential] (Opinion by Judge Angela Lykos).
The overlap in goods and the presumption that those overlapping goods travel in the same trade channels to the same classes of consumer really put applicant under the gun, so to speak.
As to the marks, the Board disagreed that consumers are likely to focus on the words “Death” and “Hunt.” "There is no mechanical test to select the dominant element of a mark."
DEATH FROM ABOVE and HUNT FROM ABOVE are both unitary marks because the words “Death” and “Hunt” do not create a commercial impression separate and apart from the marks as a whole; that is, “Death” and “Hunt” are so integrated into the marks that they cannot be regarded as separable.
Furthermore, the marks convey the same idea, meaning or commercial impression: consumers are likely to recognize both phrases as referring to goods that facilitate hunting from an elevated vantage point.
Given the similarities between the marks and identity of the goods, consumers familiar with the mark HUNT FROM ABOVE are likely to perceive Applicant’s mark DEATH FROM ABOVE as a variant mark denoting a product line extension into a specific type of hunting stand.
And so the Board affirmed the refusal to register.
Read comments and post your comment here.
TTABlogger comment: That was easy, wasn't it? Like shooting fish in a barrel (from above). The Board's argument about applicant's mark being seen as a "variation" of registrant's product line seems to me to be an end-run around the strict requirements for proving a family of marks.
Text Copyright John L. Welch 2023.
posted by John L. Welch @ 9/22/2023
5 comments
5 Comments:
This is a bad decision, IMO. HUNT FROM ABOVE is highly descriptive and should be accorded narrow protection. DEATH FROM ABOVE is more suggestive. I don't immediately make a the same connection between DEATH FROM ABOVE and a tree stand that I would make with HUNT FROM ABOVE.
I felt like Death From Above and Hunt From Above leave difference commercial impressions, but that may be the veteran in me coming out.
Who shoots animals like that? Just sayin'...
A bad decision. The cited mark, HUNT FROM ABOVE, must be considered distinctive since it's registered on the Principal Register. But having said that, it's obviously highly suggestive and should be given a narrow scope of protection. I think the marks engender different commercial impressions since DEATH FROM ABOVE is much more, ahem, colorful.
I highly doubt a German and/or European trademark office/court would decide the same
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