Thursday, September 23, 2010

Test Your TTAB Judge-Ability: Are These Two Design Marks for Software Confusingly Similar?

Of course they are, right? Not so fast there, buddy! It took the Board 67 pages to explain why it affirmed the Section 2(d) refusal of the mark on the left, for business software and computer programming services, in view of the registered mark shown on the right, for accounting software and computer services. Applicant Qliktech fired one argument after another, but none hit the target. In re Qliktech International AB, Serial No. 79054312 (September 20, 2010) [not precedential].

The Marks: The Board found the differences in the marks to be "too slight to distinguish the mark in terms of overall appearance." Qliktech that its mark would be recognized as "iQ" for various reasons, none of which the Board bought. Applicant also cited several third-party registrations, but the Board found them of no probative value.

The Goods: Qliktech asserted that its actual software product are quite different from those of the registration, but the Board as usual observed that those differences are not reflected in the identification of goods in the application. At a minimum, they are "complementary products." Qliktech's software, "as identified in the application, performs functions that are related to 'accounting' functions."

Channels of Trade and Purchasers: In brief, the Board found that the goods would travel in the same channels of trade to the same purchasers, including small business owners.

Conditions of Purchase: The Board must look to the "least sophisticated purchaser of the goods" -- small business owners who would exercise only a normal degree of care. Qliktech did not present any evidence to prove a heightened degree of care. In any case, even sophisticated purchasers are not immune from source confusion when encountering similar marks on similar goods.

The Board therefore affirmed the refusal with regard to the Class 9 goods.

The Services: Reviewing the services as recited in the application and registration, the Board found some of them to be overlapping and thus legally identical. However, some of the service might be purchased with "a degree of care" because, unlike the class 9 products, they would appear to be customized to meet the needs of the particular customer.

Nonetheless, weighing all the relevant du Pont factors, the Board found confusion likely and it affirmed the refusal as to the Class 42 services.

Text Copyright John L. Welch 2010.


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