Thursday, June 09, 2011

CAFC Hears Oral Argument in "LE TIGRE" Appeal from TTAB Decision Sustaining 2(d) Claim

On June 8, the CAFC heard oral argument in the appeal of the TTAB's LE TIGRE decision [TTABlogged here], in which the Board found the mark LE TIGRE for "writing instruments namely fountain pens, ball point pens, felt and fiber tip pens" and "markers and small leather goods, namely, cases for diaries and daily planners; and brief case type portfolios" likely to cause confusion with LE TIGRE (Stylized) shown immediately below for various clothing items. An mp3 of the oral argument may be found here (Appeal No. 2010-1028). Craig v. Kenneth Cole, Appeal No. 2011-1028.

Based on the record evidence, and particularly the testimony of Opposer's witnesses and third-party registrations, the Board found that "it would not be uncommon for consumers to encounter the same trademark being used as a source identifier for clothing apparel as well as accessory items that would include applicant’s identified goods." For example, the COACH, LUIS VUITTON, KATE SPADE, and EMILIO PUCCI marks are so used. The Board therefore found the involved goods to be related.

Applicant argued that the doctrine of natural expansion should be applied, in which case the lack of expansion by Kenneth Cole should preclude a finding of likely confusion. Kenneth Cole argued that, with the marks identical, it need show only a viable relationship between the goods in the application and registration.

TTABlog postscript: The CAFC affirmed the TTAB's decision without opinion, in a Rule 36 per curiam order issued today (here).

Text Copyright John L. Welch 2011.


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