Wednesday, February 11, 2009

Finding Two "MILLER'S" Marks for Restaurant Services Confusingly Similar, TTAB Affirms 2(d) Refusal

Miller's Pub, on South Wabash in Chicago, failed to overcome the PTO's Section 2(d) refusal to register the mark MILLER'S in stylized form (shown below, left) for bar and restaurant services. Apparently it was not "Miller's Time," because the Board found the mark likely to cause confusion with the mark MILLER'S & Design, registered for a "full service restaurant" (below, right). In re Twenty Three East Adams Street Corp., Serial No. 76978795 (January 29, 2009) [not precedential].

Applicant started out behind the proverbial 8-ball, since the involved services are identical or overlapping, leading the Board to conclude that the channels of trade are also identical or overlapping. Moreover, when the services overlap, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion.

As to the marks, Examining Attorney Renee McCray maintained, quite rationally, that because the marks contain the identical word MILLER'S, they are confusingly similar in appearance, sound, connotation, and commercial impression.

Applicant argued that MILLER is a surname, that there was no 2(f) showing of acquired distinctiveness in the cited registration (Applicant did includ a Section 2(f) claim), and therefore that "a proper comparison of the marks must focus on the display or stylization [of the marks] and not on the word MILLER'S as such." The Board rejected that argument: it may not presume that the word MILLER'S in the registered mark is not protected: "Applicant's argument that we should accord the cited registration something less than full effect is an impermissible attack on the registration."

The Board therefore agreed with the PTO that the word MILLER'S is the dominant element in both marks. Nothing in the stylization or the design of the marks dictates otherwise, despite Applicant's creative, but futile, contention that:

"The connotation and commercial impression of the cited registration is that of a family oriented seafood restaurant in view of the depiction of a funny man riding a swordfish. To the contrary, the connotation and commercial impression of Applicant's mark is that of a more sophisticated, adult oriented British Isle pub-style restaurant."

Applicant next argued that the registered mark is weak and entitled to a limited scope of protection in view of third-party registrations containing the word MILLER'S for restaurant services: ANA MILLERS' PIES; BILL MILLER BAR-B-Q; MILLER'S ROAST BEEF; CHERRY MILLER'S CAFE; MILLER'S CROSSING; AND PETE MILLER'S. The Board noted that each of these marks does include some additional wording, and therefore the regsitrations are not persuasive of a lack of likely confusion here.

Finally, Applicant contended that "potential purchasers of restaurant services are sophisticated and this fact would preclude confusion in this case." That argument, understandably, went nowhere.

And so, the Board affirmed the refusal to register.

TTABlog note: I dined on barbecued ribs at Miller's Pub the last time I was in Chicago. [Inexplicably, I am not included among the Pub's Celebrities]. I wouldn't call it a sophisticated dining experience. It is difficult to feel sophisticated when gnawing on a rib. Anyway, I took this photo of the pub, not too successfully, during my cab ride to the airport.

Text and photograph Copyright John L. Welch 2008-2009.


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