Monday, July 25, 2011

WYHA? TTAB Affirms 2(d) Refuslal of "RIDE OR DIE" over "RIDE TILL I DIE" for Clothing

Applicant Good Sports, Inc. rode this application all the way to the TTAB, where it died in a collision with Section 2(d). The Board affirmed a refusal to register the mark RIDE OR DIE (in standard character form) for various clothing items, in view of the registered mark RIDE TILL I DIE for overlapping clothing items. Would you have appealed? In re Good Sports Inc., Serial No. 77738935 (July 20, 2011) [not precedential].

Being a good sport, Applicant did not dispute that the involved goods are related. In fact, both the application and the cited registration cover hats and gloves. The Board thus must presume that the goods travel in the same channels of trade to the same classes or customers. These du Pont factors "weigh heavily in favor of a finding of likelihood of confusion."

Moreover, because the goods are in part identical, a lesser degree of similarity between the marks is necessary to support a Section 2(d) refusal.

Examining Attorney Kim Saito conceded that the marks have "very slightly different meanings, with applicant’s mark conveying the idea that a person will ride or die from wanting to ride, and registrant’s mark meaning a person will ride until his/her death." Not enough, said the Board:

"Despite this slight nuance in meaning, the marks still convey images of 'riding' and '“dying' in pithy phrases; although perhaps not identical in connotation, the marks have similar meanings, that is, 'I'm going to ride until I die.' While we have considered the slang meanings of the phrases as shown by applicant’s evidence, any difference in meaning is so subtle and nuanced that only purchasers engaging in extremely careful scrutiny and parsing would distinguish between the marks on this basis."

In short, the Board agreed with the Examining Attorney that the marks "are pithy phrases using monosyllabic words that reference riding and dying...and the rhythm and feel of the marks are similar." Any difference in meaning "is clearly outweighed by the presence of the identical words in each mark, 'RIDE' and 'DIE,' that results in marks that sound and look alike."

And so the Board affirmed the refusal.

Ride or Not

Text Copyright John L. Welch 2011.


At 1:41 PM, Anonymous Anonymous said...

What about strength of the marks? There aren't any other "ride" marks in connection with similar goods? Without even looking, I'd bet that there are. Regardless, I just don't see the confusion. The slight differences in the marks really creates two to distinct meanings.


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