Thursday, March 08, 2012

TTAB Grants Summary Judgment Motion in Section 2(d) Opposition Involving "AA" Marks

It seldom happens in the 2(d) realm, but the Board granted Opposer Olin's motion for summary judgment, finding the applied-for mark AA & Design (shown to the right) for "ammunition, gun and rifle cases, rifles, and related products," likely to cause confusion with the registered marks AA for "ammunition and parts thereof," DOUBLE A for "wads for shot shells," and AA & Design (shown below) for "shot shells and wads for shot shells." Olin Corporation v. Alexander Industries, Inc. d/b/a Alexander Arms, Opposition No. 91197030 (February 24, 2012) [not precedential].

The Board began by finding the involved goods of the parties to be legally identical. It presumed, as it must, that these goods travel through the same trade channels to the same classes of customers (since there were no limitations in the identifications of goods). Of course, when the goods are identical a lesser degree of similarity between the marks is necessary to support a finding of likely confusion.

The Board deemed "AA" to be the dominant portion of the parties marks. [Even the DOUBLE A mark? - ed.]. The design portion of Applicant's mark, a shield with crosshairs and a circle, is related to ammunition and firearms and is therefore not distinctive of the goods and entitled to little weight. The Board found no genuine issue of material fact concerning the similarity of the marks.

The Board declared, litotically, that "opposer's sales have not been insignificant," and Applicant admitted that "opposer's mark may be famous within the firearms industry." Applicant's purported evidence of third-party use of the mark AA was nonprobative because there was no showing that the marks are actually in use.

Applicant's assertion that customers for the involved goods are sophisticated, missed the target. There was no evidence that purchasers "would be educated about the products or discerning in their purchases." In any event, even sophisticated purchasers may be confused by very similar marks on identical goods.

The lack of evidence of actual confusion did not raise a genuine issue of material fact because the test under Section 2(d) is likelihood of confusion, not actual confusion. "If the lack of evidence of actual confusion were enough to generally raise a genuine dispute, summary judgment could almost never be granted in favor of a plaintiff on a ground of likelihood of confusion, and that is not the case."

Applicant had moved to amend its application to add a disclaimer of AA, but the Board denied the motion, since the disclaimer would do nothing to negate Olin's claim of likely confusion.

And so the Board granted the motion for summary judgment.

TTABlog comment: Olin had also moved for summary judgment on the ground of dilution, but the Board declined to reach that issue. Curiously, in the JUST JESU IT case and the recent CRACKBERRY decision, the Board found a likelihood of confusion but still went on the decide the dilution issue. In JUST JESU IT, the Board apparently wanted to announce a new standard for the required similarity between the marks. In CRACKBERRY, it did not find confusion vis-a-vis Applicant's clothing items, so the dilution ground was necessarily considered as to those goods.

Text Copyright John L. Welch 2012.


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