Tuesday, May 20, 2014

Test Your TTAB Judge-Ability: Are LEN and LENS Confusable for Clothing Store Services?

The PTO refused registration of the mark LEN, in the form shown below, on the ground of likelihood of confusion with the registered mark LENS, both for retail clothing store services. Applicant argued that "Len" is the first name of its owner and thus is "immediately recognizable to consumer[s] as a first name," whereas LENS is an "obvious misspelling of the word LENSE." How do you think this came out? In re Len Druskin Inc., Serial No. 85590018 (May 14, 2014) [not precedential].

Because applicant's services and those of the cited registration are identical, the Board must presume that they travel in the same, normal channels of trade to the same classes of consumers.

As to the marks, the absence of the letter "S" from the applied-for mark "slightly distinguishes it visually and aurally from the cited registered mark." However, the "S" does not created an additional syllable in the cited mark or otherwise significantly change its appearance or sound as compared to applicant's mark.

As to the meanings of the marks, there was nothing in the record to support a finding that LENS would be perceived as anything other than the common word "lens." Nor was there any evidence regarding the extent to which consumers would be aware of applicant's corporate name or the name of the owner such that they would make an association between the mark and the owner. "Clearly, there are distinctions between the common optical meaning of the term 'lens' and the term 'len' which may be perceived as a given name, a coined term or possibly an acronym." However, the Board found, this difference in connotation was not enough to overcome the similarities in appearance and sound.

Simply put, registrant’s mark appears to be a pluralization, or possibly a possessive form, of applicant’s mark. Considering the marks in their entireties, we find that the marks are
very similar in sight, sound, and overall commercial impression.

Balancing the relevant duPont factors, the Board found confusion likely, and it affirmed the refusal.

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TTABlog note:  So how did you do?

Text Copyright John L. Welch 2014.


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