Wednesday, February 15, 2006

"COLD DOG" Mark Gets Cold Shoulder in TTAB 2(d) Appeal

Applicant Stephen Wild barked up the wrong tree when he tried to overturn the PTO's Section 2(d) refusal to register his mark COLD DOG for bulk ice cream. The Board found the mark confusingly similar to the registered mark COOL DOG for frozen confections and for dessert food products for sale to food services and retail companies (including ice cream). In re Wild, Serial No. 76580478 (January 31, 2006) [not citable].

Applicant Wild lamely argued that the marks are dissimilar in appearance and pronunciation and have different connotations, since "cool" in Registrant Cool Dog Inc.'s mark "has the apt and more appropriate meaning of 'socially adept.'" The Board was not moved:

"both applicant's and registrant's goods include ice cream and other frozen confections so the definitions referring to low temperatures are likely to be the ones that prospective purchasers associate with the marks."

In addition, the Board found that, although the marks "do not sound very similar," the appearances of the marks are "somewhat similar" and the commercial impressions of the marks are "very similar." In sum, the only difference between the marks is "the emphasis on the greater degree of coldness in applicant's mark (cold v. cool)."

"Prospective purchasers encountering these marks would understand that the marks are a play on the term "Hot Dog.' To the extent that prospective purchasers would notice the difference between 'cold' and 'cool,' they are likely to believe that they are slightly different versions of ice cream products from the same source."

As to the goods, there was little to argue about, since they are in part identical: "Dessert food products for sale to food services and retail companies, namely, ice cream would include bulk ice cream."

Finally, Applicant Wild contended that purchasers of its goods would be sophisticated, but the Board found that this factor does not eliminate the likelihood of confusion: "Institutional buyers are not infallible or necessarily able to distinguish very similar marks used on identical goods."

The Board therefore affirmed the refusal to register.

Text Copyright John L. Welch 2006.


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