TTAB Easily Finds TREEBNB Confusable with AIRBNB for Temporary Housing Services

Lightning struck the Bolts in their attempt to register the mark TREEBNB & Design for, inter alia, "Arranging temporary housing accommodations." The Board found confusion likely with the registered mark AIRBNB for the identical services. Although one DuPont factor weighed in their favor, the Bolts' application was uprooted by the remaining relevant factors. Airbnb, Inc. v. Seth Bolt and Victoria Bolt, Opposition No. 91273632 (July 17, 2024) [not precedential] (Opinion by Judge Karen S. Kuhlke).

By way of background, the Bolts “provide short-term rentals in treehouses, mirror cabins and domes at their Whitwell, Tennessee and Walhalla, South Carolina properties, along with chef, massage and yoga personal services for overnight guests in Tennessee.”

The DuPont factors regarding the relatedness of the services and the channels of trade weighed "strongly" in favor of a finding of likely confusion, but the purchaser-care factor weighed slightly in the other direction. [I think that renting a treehouse is not an impulse purchase, though I have never rented one - ed.].

As to the commercial strength of the AIRBNB mark, opposer relied on a "fame" survey. media references in the press and in travel and lifestyle publications, its long-standing use of the mark, and opposer's enforcement activity. In the survey, 32.7% of all the respondents named AIRBNB when asked, unaided, to list all companies, websites, or mobile apps they are aware of that offer finding, listing, and reserving rental properties. The record also included many references to and reviews of accommodations available through AIRBNB specifically pertaining to treehouses.

The Board found that AIRBNB "is on the 'very strong' end of the 'spectrum from very strong to very weak.'" Joseph Phelps Vineyards, 857 F.3d at 1325. "Opposer’s AIRBNB is entitled to a broad scope of protection against confusingly similar marks, therefore increasing the likelihood of confusion with Applicants' mark."

Turning to the marks, the Board observed that the terms AIRBNB and TREEBNB have the same structure: a one syllable word preceding the term BNB. This identical structure engenders a similar commercial impression.

[G]iven the commercial strength of AIRBNB in this field and the offering of tree houses on the AIRBNB platform, consumers would view TREEBNB as a subset of AIRBNB’s services or, as Opposer characterizes it, “consumers would believe Applicants’ TREEBNB services are an expansion of Airbnb’s existing use of [their] Airbnb brand in the treehouse space.”

As a final blow, an Eveready-type survey indicated a 37.5 percent level of confusion between the involved marks.

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TTABlogger comment: I refuse to say that the Bolts were barking up the wrong tree.

Text Copyright John L. Welch 2024.