BON VOYAGE Fails to Function as a Trademark for Travel Pillows, Sinking Cancellation Petitioner's 2(d) Claim

Kennedy International petitioned to cancel a registration for the mark BON VOYAGE for travel pillows, claiming likelihood of confusion with its identical common law mark for the same goods. Priority was the question. Bye-bye was the answer. Kennedy International, Inc. v. Sutton Home Fashions, Inc., Cancellation No. 92080461 (March 5, 2025) [not precedential] (Opinion by Judge Elizabeth K. Brock).

To establish priority, Petitioner Kennedy had to prove by a preponderance of the evidence that it owns proprietary rights in "a mark or trade name previously used in the United States . . . and not abandoned . . . ." Threshold.TV, Inc. v. Metronome Enters., Inc., Opp. No. 91152662, 2010 TTAB LEXIS 314, at *13-14 (TTAB 2010).

A cancellation petitioner seeking to cancel a registration under Section 2(d) must demonstrate "that it has prior use of a mark that is distinctive, inherently or otherwise, prior to the first use or constructive first use of the respondent’s mark." See Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317, 1320 (CCPA 1981) (emphasis by the Board)."

“One way a proposed mark fails to function is if consumers will view it as a merely informational slogan or phrase instead of something that ‘point[s] out distinctively the origin of the goods to which it is attached.’” In re Brunetti, Ser. Nos. 88308426, 88308434, 88308451, and 88310900, 2022 TTAB LEXIS 297, at *16 (TTAB 2022) (quoting In re Bose Corp., 546 F.2d 893, 897 (CCPA 1976))."

“Consumers ordinarily take widely-used, commonplace messages at their ordinary meaning, and not as source indicators, absent evidence to the contrary.” Brunetti, at *18-19.

The Board observed that “Bon voyage” is a French expression “[u]sed to express farewell and good wishes to a departing traveler”; the words “bon voyage” translate directly to “good journey.”

Kennedy applied the phrase BON VOYAGE to its pillows in the same manner as it displayed other travel-related words and phrases: “Vacay Vibes”, “Do Not Disturb”, “Frequent Flyer”, “Vacay”, “Jet Set”, “First Class”, “Live Love Travel”, and “Explore”. Thus, Kennedy's own use use of BON VOYAGE "makes clear that the term is not a designation of source but a feature of the goods."

In selecting one of these travel pillows, customers may choose one reading “Bon Voyage” instead of “Vacay” based on personal preference of the message conveyed. Expressing enthusiasm for travel does not serve a source-indicating function. See D.C. One Wholesaler, Inc. v. Chien, 2016 TTAB LEXIS 536, at *20. We find that Petitioner’s use of “Bon Voyage” fails to function as a trademark and is just one of many stylistic options that Petitioner makes available on its travel pillows.

The Board concluded that Kennedy failed to demonstrate that it owns prior common law rights in the trademark BON VOYAGE for travel pillows, and so the Board denied the petition for cancellation for failure to prove priority.

Registrant's specimen of use

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TTABlogger comment: Note how registrant uses BON VOYAGE as a mark.

Text Copyright John L. Welch 2025.