Wednesday, February 26, 2014

Test Your TTAB Judge-Ability: Are These Two "WELLS" Logos Confusable for Frozen Confections?

Margverz, Inc. sought to register the mark shown below, left for frozen confections (among other things) [FRUIT CANDY disclaimed], but Examining Attorney Paul Moreno refused registration under Section 2(d), deeming the mark likely to cause confusion with the mark shown below, right for "frozen confections" [FAMILY COMPANY and SINCE 1913 disclaimed]. Applicant appealed. What did the TTAB decide? In re Magverz, Inc., Serial No. 85614128 (February 21, 2014) [not precedential].

Because the involved goods are, in part, identical, the Board must presume that these identical goods travel in the same channels of trade to the same classes of consumers. Magverz lamely argued that the goods are different because it uses its mark exclusively with sugar-free mints and confectionery products that are "vitamin enhanced," whereas the cited mark is used with frozen confections sold under the BLUE BUNNY BRAND. Irrelevant, said the Board. Its determination must be made based upon the goods identified in the application and cited registration, regardless of how the marks are actually used.

Next, Magverz feebly argued that WELLS is a weak term, citing eleven registered marks: SIMPLY WELL, WELLMADE, WELLABY'S, OPTIWELL, WELLTHY CHOCOLATES, MEDWELL FOODS, WEL CREAM DESSERTS, TEACH THEM WELL, SOY WELL, EAT WELL BE WELL, and OATWELL. The Board found two major problems with this evidence: (1) there was no proof as to whether these marks are in use or whether the public is familiar with them; and (2) none of the marks are as similar to the registered marks as is the applied-for mark. In fact, the commercial impression of each of the involved marks is the surname "Wells." The Board concluded that the strength of the registered mark is a factor favoring a finding of likely confusion.

Comparing the marks, the Board noted that when the goods are (in part) identical, a lesser degree of similarity between the marks is necessary to support a Section 2(d) refusal. Here, the board found, not surprisingly, that the word WELLS is the dominant portion of each of the marks. The other words in the marks are descriptive with little trademark significance, or generic. The design elements (primarily a round carrier and an oval carrier) merely serve as background designs for the word WELLS, which word projects the primary significance of each mark.

Magverz asserted that its mark has a "modern, cooler appearance," in contrast to the nostalgic look of the cited mark. However, the Board observed, customers for registrant's goods may view the applied-for mark as an update of the registrant's mark for its "Fruit Candy" line of products.

In sum, the Board found the marks to be similar in appearance, sound, connotation, and commercial impression. Balancing the relevant du Pont factors, the Board found confusion likely and it affirmed the refusal.

Read comments and post your comment here.

TTABlog note:  Wells, how did you do? Do you think this is a WYHA? Why wasn't the article "A" disclaimed?

Text Copyright John L. Welch 2014.


At 8:39 AM, Anonymous Gene Bolmarcich said...

I can not understand why Applicant's like this one do not at least try narrowing the goods before they appeal, if they're going to bother to argue the differences in the goods (uh, did they see that they are IDENTICAL?). Cases like these deserve no more than a one page decision.

At 9:40 AM, Anonymous Anonymous said...



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