TTABlog Test: Are These Two Stylized "X" Marks Confusable for Footwear?

The USPTO refused to register the mark shown below left for, inter alia, footwear, finding confusion likely with the mark shown below right, for "shoes." Applicant Global Brand Partners asserted that "the marks are sufficiently different” to avoid a likelihood of confusion. What do you think? In re Global Brand Partners Pte Ltd, Serial No. 97102423 (March 18, 2024) [not precedential] (Opinion by Judge Mark Lebow).

The Board found the respective goods to be legally identical in part; these overlapping goods are presumed to travel in the same channels of trade to the same class of purchasers. The second and third DuPont factors therefore weighed strongly in favor of a finding of likelihood of confusion. Moreover, with the goods identical in part, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion.

Turning to the marks, the Board agreed with Examining Attorney Magdalena Berger that their overall commercial impression is “sufficiently similar to find a likelihood of confusion."

Both marks are discernable depictions of the letter X and share certain characteristics including three lines on the left side and solid prongs on the right side. See Textron Inc. v. Maquinas Agricolas “Jacto” S.A., 215 U.S.P.Q. 162, 163 (TTAB 1982) (observing that in cases involving highly stylized letter marks “similarity of appearance is usually controlling and the decision [regarding likelihood of confusion] will turn primarily on the basis of the visual similarity of the marks”).

Global attempted to prove the weakness of the cited mark by introducing a dozen third-party registrations covering clothing products. However, as the Examining Attorney observed, none featured "a design that visually resembles the mark at issue." "Seven of the submitted third-party marks are composite marks' that "feature design elements and other wording thereby creating a markedly different commercial impressions from applicant’s and registrant’s mark;" and "the design elements in these registrations do not resemble the stylized letters X at issue in this case."

The Board, deeming the marks "far more similar than disimilar," affirmed the refusal to register.

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Text Copyright John L. Welch 2024.