Tuesday, May 04, 2010

TTAB Reverses 2(d) Refusal, Finds "PANTECH BREEZE" and "BREEZE ACCESS" Too Different for Wireless Products

It took the TTAB just over seven pages to reverse a Section 2(d) refusal of the mark PANTECH BREEZE for "wireless telephone transmitters and receivers for use other than broadband wireless access." The Examining Attorney had found the mark likely to cause confusion with the registered mark BREEZE ACCESS for equipment and accessories for broadband wireless access. Although Applicant's "carve-out" of broadband wireless goods was ineffective, the marks were just too different to support the refusal. In re Pantech Co., Ltd. Serial No. 77501046 [not precedential].

The Examining Attorney submitted a "large number" of use-based third-party registrations that indicated that "entities have registered their marks for goods of the type listed in applicant's application and for goods of the type list in the cited registration." Website evidence demonstrated that the channels of trade for the involved goods are overlapping: they are offered by cell phone providers to ordinary consumers.

Turning to the marks, the Examining Attorney contended that BREEZE is the dominant portion of each mark, and that Applicant's addition of its house mark PANTECH to the registered mark does not avoid confusion.

The Board agreed that the word BREEZE in the cited registration should be given more weight, since ACCESS is a descriptive term for goods used in connection with broadband wireless access. However, the Board did not agree that BREEZE should be given more weight in Applicant's mark.

Rather, the term PANTECH dominates in applicant's mark because it is often the first portion of a mark that is more likely to make an impression on potential purchasers. *** Moreover, PANTECH appears to be a distinctive, coined term, with no meaning (other than as a trademark), while BREEZE is an arbitrary term, suggestive of the notion that applicant's goods are easy to use.

The Board perceptively observed that Applicant did not merely add its house mark to the registered mark: "applicant's mark is not PANTECH BREEZEACCESS."

It found that Registrant's mark "suggests equipment and accessories that provide 'easy access' to the internet," whereas Applicant's mark does not have this "specific connotation," especially since Applicant's goods are for use other than broadband wireless access.

And so the Board concluded that the differences in the mark outweigh the other relevant du Pont factors.

TTABlog comment: Boring Section 2(d) cases like this that make one glad not to be a TTAB judge.

Text Copyright John L. Welch 2010.


At 4:13 PM, Anonymous Anonymous said...

I enjoyed the Board's comment "BREEZE is an arbitrary term, suggestive of the notion that applicant's goods are easy to use." So which is it -- an arbitrary term, or a suggestive one?


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