Tuesday, October 21, 2014

TTAB TEST: Are AirREX and AIRTECH Confusable for Vehicle Suspension Springs?

Turkish company Aktas opposed Taiwan's Pin Hsiu Rubber's application to register the mark AirREX in the design form shown below, for, inter alia, "air springs for vehicle suspension components for cushioning driver's seats and cabs," claiming a likelihood of confusion with its registered mark AIRTECH for "air springs for vehicle suspension and for cushioning driver's seats and cabs." The Board found the goods to be, in part, legally identical. But what about the marks? Isn't AIR a rather weak formative in this field? How do you think this came out? Aktas Hava Suspansiyon Sistemleri Sanayi Ve Ticaret AS v. Pin Hsiu Rubber Co., Ltd., Opposition No. 91204375 (September 26, 2014) [not precedential].

Applicant pointed to ten prior registration for AIR-containing marks for goods related to vehicle suspension - AIR LIFT, AIR RUNNER, AZ AIR-ZENITH, AIRCRUSE, SIMILAIR, AIRPOD, AIRPLOW, AIRHAWK, AIR FORCE, and AIR CHASSIS - but it provided no direct evidence of actual use of these marks. With that lack of proof, the Board could not conclude that the field is so crowded with AIR-formative marks that consumers would distinguish the two marks in question based on small differences in the marks. In other words, the Board could not make any conclusion as to the commercial strength of opposer's mark.

However, as to the conceptual strength of opposer's mark, the third-party registrations, along with the dictionary definition of "air," led the Board to the conclusion that the word AIR "certainly has suggestive significance with respect to both Opposer's, Applicant's, and these third-party goods, namely suspension, cushioning, and wind-protection devices." The third-party registrations "serve as a reference source (much like a dictionary) for the usual connotation of the word 'Air' with respect to the goods in this field."

Because the word "Air" has suggestive significance and the word "Tech" is also suggestive ("of the level of technology incorporated into Opposer's suspension and cushioning components"), opposer's mark is not a strong one. Moreover, "Air" cannot be considered the dominant portion of AIRTECH.

The Board found that, visually and orally, the dissimilarities in the marks outweigh the differences. More importantly, the connotations are quite different. The parties "seem to agree" that applicant's mark connotes "king of the air," or something like that, whereas AIRTECH connotes air springs employing the latest technology.

In view of the relative weakness of opposer's mark, the Board concluded that the dissimilarity of the marks was the decisive factor.

And so the Board dismissed the opposition.

Read comments and post your comment here

TTABlog note: Well, what do you think?

Text Copyright John L. Welch 2014.


At 9:14 AM, Anonymous Anonymous said...

sorry, john... i know you put a lot of effort into the content of these posts, but i just read the title of the post and said 'no'

At 6:03 PM, Anonymous Mark S. Graham, Esq. said...

Interesting case, sort of. But I would not have thought it a very close one, even with identical goods. I can see why there was no examination-based refusal by the EA.

I have similar cases pending before the Board, so I'm glad to see you bring up cases like this.

I'm a big fan of your "blog." You do a consistently tremendous job!

Best regards,

M Graham, Esq.

At 11:26 AM, Anonymous Anonymous said...

Yes, great job on the blog. Thanks


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