Friday, April 11, 2008

Finding No Cultural Significance for "HONEYSUCKLE ROSE," TTAB Affirms 2(d) Refusal over "HONEYSUCKLE" For Clothing

Rejecting Applicant's contention that its mark HONEYSUCKLE ROSE (slightly stylized) has "cultural significance" that would change its connotation, the Board affirmed a Section 2(d) refusal to register that mark for various clothing items, finding it likely to cause confusion with the mark HONEYSUCKLE & Design (shown below) for clothing. In re Right-On Co., Ltd., Serial No. 79011373 (March 31, 2008) [not precedential].

The Board, not surprisingly, found the word HONEYSUCKLE to be the dominant portion of the registered mark. The primary disagreement between Applicant and Examining Attorney Melissa Valillo concerned the connotation and commercial impression of HONEYSUCKLE ROSE.

The Examining Attorney contended that the two words "identify separate and distinct types of plants." Applicant, however, argued that HONEYSUCKLE ROSE has a "cultural significance as evidenced by the numerous businesses that have appropriated this mark for their business names. Applicant is employing this cultural meaning in its use of the mark HONEYSUCKLE ROSE."

To support its "cultural significance" argument, Applicant offered "extremely limited" evidence: one Wikipedia article for "honeysuckle rose" and a few webpages showing various business names incorporating the term.

lists three separate entries for "honeysuckle rose;" A "jazz standard" from 1928 written by Fats Waller; the 1980 movie starring Willie Nelson; and the name of Willie Nelson's "famous touring bus."

The Board found the song reference to be unpersuasive vis-a-vis its current popularity. The movie entry was "too brief" and does not "reflect on the popularity" of the movie today. And the statement that the tour bus is "famous" is entitled to little weight without more evidence. Moreover, Wikipedia is a "collaborative online encyclopedia and a Wikipedia article at any given time may contain significant misinformation."

Thus the Board was not persuaded that HONEYSUCKLE ROSE has any other meaning. It found that, to the typical consumer, the meaning of the term consists of an arbitrary combination of two plants or flowers. Since the addition of ROSE does not change the connotation of HONEYSUCKLE, the Board found the marks to be similar in overall connotation and commercial impression.

Moreover, the Board ruled that the differences in appearance and sound between the marks are outweighed by the similarities in connotation and commercial impression created by the shared term HONEYSUCKLE.

The Board therefore affirmed the Section 2(d) refusal.

TTABlog comment: Note the rough treatment given Applicant's Wikipedia evidence. Factual statements are one thing (at least they may be corroborated or refuted), but statements of opinion like "jazz standard" and "famous" are out of bounds.

Text Copyright John L. Welch 2008.


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