Wednesday, April 29, 2009

TTABlog Challenge: You Be The TTAB Judge!

Imagine yourself in the role of TTAB judge. You are considering the summary judgment motion filed by an Applicant seeking to register the mark shown to the right, for retail grocery store services. The Opposer claims that confusion is likely with the six registered marks shown below, for various food items, including sausage, barbequed pork, and various other swine-related products. How would you rule in Odom's Tennessee Pride Sausage, Inc. v. FF Acquisition, L.L.C., Opposition No. 91182173 (April 17, 2009) [not precedential]?

In its terse six-page opinion, the Board granted the motion for summary judgment, finding that, even considering all other relevant du Pont factors in Opposer Odom's favor, the single factor of the dissimilarity of the marks was dispositive:

While both parties’ design marks consist of smiling boys wearing hats (and in some instances both waiving [sic!] one hand), this is where the similarities end. Opposer's marks depict a barefoot child holding a fishing pole. The boy is wearing a tall pilgrim hat with a ribbon directly above the brim. The boy's feet are small and narrow. By contrast, applicant’s mark depicts a boy facing forward wearing a short, wide brimmed cowboy hat. This boy is wearing thick boots, has thick hands, and has a piece of straw in his mouth. The boy depicted in opposer’s marks has nothing in his mouth. These visual distinctions are sufficient to create different commercial impressions of the marks, thereby precluding a finding of likelihood of confusion.

And so the Board dismissed the opposition.

TTABlog comment: Well, how did you do? Easy, no? Do you think this case belongs in the WYHO (Would You Have Opposed?) category? I do.

Text Copyright John L. Welch 2009.


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