Precedential No. 18 (Part II): TTAB Grants Petition to Cancel BLOOKE Registration for Bicycles

Look Cycle, owner of the mark LOOK for bicycles and bicycle parts, petitioned to cancel a registration for the mark BLOOKE for bicycles, parts, and accessories, alleging likelihood of confusion, nonuse, and fraud. The Board upheld all three claims This blog post will discuss the first two; yesterday's post dealt with the fraud issue. Look Cycle International v. Kunshan Qiyue Outdoor Sports Goods Co., Ltd., Cancellation No. 92079409 (August 9, 2024) [precedential] (Opinion by Judge Karen S. Kuhlke).

Likelihood of Confusion: The Board focused on petitioner's registered mark shown below left for "cycles and structural parts therefor" and its common law mark shown below right, for bicycles and bicycle parts. As to the parties' involved registrations, the goods are identical in part and therefore are presumed to travel in the same trade channels to the same classes of consumers. As to petitioner's common law mark, the actual trade channels overlap with the presumed trade channels of respondent. Moreover, the products include inexpensive parts that do not involve a high degree of purchaser care.

Petitioner's marks are inherently distinctive. As to commercial strength, the evidence showed that these marks enjoy a "somewhat heightened level" of strength among serious consumers, but they fall short of the "higher end of the fame or commercial strength spectrum." The Board accorded the marks a "slightly broad scope of protection" in view of marks' strength among bicycle enthusiasts.

The key issue, however, was the similarity of the marks. The Board noted for the umpteenth time that when the involved goods are identical, a lesser degree of simililarity between the marks is necessary to support a finding of likely confusion. Not surprisingly, the Board found the word LOOK to be the dominant element of petitioner's marks. Surprisingly, however, the Board found the parties' marks to be similar in appearance: "the word LOOK is apparent in the mark in particular when appearing on the product as shown below." [Really? - ed.]

Moreover, the Board opined that since the respondent's mark is registered in standard characters, the Board must consider "possible displays that emphasize the common element LOOK such as bLOOKe or BLOOKE." [Really? That seems a stretch! - .ed].

As to pronunciation, the Board concluded that respondent's mark could be pronounced like the common word "look" and like surnames such as Cooke and Hooke. [Pronunciation is like what patent lawyers refer to as a nose of wax - selectively twistable - id.]. As to connotation, BLOOKE "could invoke LOOK when that word is perceived by consumers as embedded within BLOOKE." [Unlikely - ed.]

Balancing the relevant DuPont, factors, the Board found confusion likely.

Nonuse: The Board found the use-based application underlying the BLOOKE registration to be void ab initio because the mark was not in use for any of the identified goods as of the filing date. Petitioner Look undermined respondent's specimen of use (see the fraud discussion) and all of the evidence of use produced by respondent during discovery.

Respondent is correct that use may be proven by witness testimony that is clear, consistent and uncontradicted. But here the testimony is not clear, it does not attest to any of the specific goods listed in the registration, just the class, and is inconsistent with and contradicted by the documentation Respondent submitted with its specimens of use. Petitioner demonstrated this by showing the ghost addresses, and the documentation submitted with the testimony, the aliexpress.com orders, showing orders for goods not listed in the registration or shown in the specimens of use. Respondent is also correct that it is Petitioner’s burden to prove its claim of no use prior to the application filing date, which Petitioner has done by showing the infirmity of the specimens of use, and Respondent did not rebut Petitioner’s showing with evidence to show actual sales of the identified goods prior to April 7, 2021.

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TTABlogger comment: I think the Board went out of its way to nail this Chinese registrant on the Section 2(d) claim.

Text Copyright John L. Welch 2024.