Sustaining Opposition, TTAB Finds RYDE OUT Confusable with RYDE for Supplements and Energy Drinks

Opposer British American Tobacco ("BAT") ran roughshod over Applicant Ruff Ryders' application to register the mark RYDE OUT for dietary and nutritional supplements and for energy drinks. The Board found confusion likely with BAT's mark RYDE for the same goods. Neither party claimed use of its mark, but BAT established priority based on the constructive first use date of its pending application, which claimed convention priority from a Jamaican application filed in September 2019. British American Tobacco (Brands) Limited v. Ruff Ryders, Inc., Opposition No. 91275212 (July 22, 2024) [not precedential] (Opinion by Judge Michael B. Adlin).

The identity of the goods and their presumed overlapping channels of trade and classes of purchasers weighed "heavily" in favor of finding a likelihood of confusion. Furthermore, the identity of the goods reduces the degree of similarity between the marks necessary to support such a finding.

Ruff Ryders argued that the word "ryde," the phonetic equivalent of "ride," is merely descriptive of the goods because it means "to continue without interference" and "be supported and usually carried along by," thus conveying the connotation that BAT's goods "will help consumers continue without interference or be supported or carried along." The Board was unmoved: "there is nothing that "immediately conveys knowledge of a quality, feature, function, or characteristic" of the goods.

Ultimately, we find that because Opposer’s mark is slightly suggestive, it is conceptually slightly weak, somewhat reducing the scope of protection to which it is entitled. Nonetheless, the mark remains inherently distinctive and it is not so weak as to be unentitled to protection against confusingly similar marks.

The Board found the marks to be "more similar than dissimilar" as to appearance, sound, connotation and commercial impression. "Competing uses of a peculiar misspelling of “ride” for identical goods is likely to cause confusion."

Ruff Ryders claimed that RYDE OUT is a unitary mark and has a meaning distinct from "ride" alone: it is the phonetic equivalent of "ride out," which means "to succeed in surviving or getting through (something dangerous or harmful that cannot be stopped or avoided)." The Board acknowledged that RYDE OUT may convey a different meaning and create a different commercial impression than RYDE alone, but it found this difference to be "outweighed by the marks' similar appearance and sound."

Moreover, Ruff Ryders promotes the term RYDE OUT in connection with motorcycle events, and it essentially conceded that it "came up with the idea of the RYDE OUT energy drink as a compliment to the ‘Ride Out’ or ‘Ryde Out’ motorcycle lifestyle synonymous with [Applicant]."

The Board concluded that "[t]he goods are identical in part and presumed to travel in the same channels of trade to the same classes of consumers. The marks are more similar than dissimilar and Opposer’s is inherently distinctive and conceptually strong enough to be entitled to protection against Applicant’s. Confusion is likely."

Finally, the Board point out that BAT’s priority is "merely contingent" because it is based solely on its pleaded application filed under Sections 1(b) and 44(d) of the Act. "[N]o final judgment shall be entered in favor of an applicant under section 1051(b) of this title before the mark is registered, if such applicant cannot prevail without establishing constructive use pursuant to section 1057(c) of this title.” 15 U.S.C. § 1068; § 1068; Spirits Int’l, 99 USPQ2d at 1549.

And so, the opposition was sustained on the ground of likelihood of confusion, contingent upon BAT establishing its constructive use through registration of the mark in its pleaded application.

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Text Copyright John L. Welch 2024.