Wednesday, December 10, 2014

TTAB Finds SNUG BUGS for Plastic Toys Confusable with SNUGGLE BUGZZZ for Plush Toys

Amidst a dearth of interesting decisions from the TTAB comes this one, in which the Board affirmed a Section 2(d) refusal to register the mark SNUG BUGS for "Hard plastic and mechanically connectible toy animals for toddlers and infants" [BUGS disclaimed], in view of the registered mark SNUGGLE BUGZZZ, in standard character and design form, for "plush toys, soft sculpture toys, stuffed and plush toys." Applicant trotted out several of the Top Ten Losing TTAB Arguments, and the Board squashed them like a bug. In re Battat Incorporated, Serial No. 85856116 (December 8, 2014) [not precedential].

Although applicant limited its goods to those for infants and toddlers, the goods of the registration are not so limited, and could include “plush toys, soft sculpture toys, stuffed and plush toys” for toddlers and infants. Applicant argued that these goods are “distinct” and “distinguishable,” but the Board pointed out that goods need not be identical or even competitive in order to support a finding of likely confusion. It is sufficient that they are related in some manner such that a consumer might mistakenly believe that they emanate from the same source.

Examining Attorney Kelly F. Bolton submitted ten third-party registrations, each covering both types of goods, as well as Internet web pages suggesting that the involved goods are offered by third-parties under a single mark. The Board concluded that applicant's hard plastic toys and registrant's stuffed toys are closely related.

The Internet evidence established the the involved goods travel through the same trade channels: namely, on-line websites and toy stores.

As to the marks, the Board found them similar in pronunciation and appearance. Moreover, they are identical in connotation and create the same commercial impression, as the Board explained:

“Snug” and “snuggle” are variations of the same word. In fact, the dictionary entry for “snuggle” states that it is a “[f]requentative of SNUG.” Further, the phonetically equivalent suffixes “BUGS” and “BUGZZZ” are identical in meaning. To the extent that SNUGGLE BUGZZZ is suggestive of “bedtime, sleeping, and cuddling, as a child may do with a ‘stuffed and plush toy’”, “SNUG BUGS” is equally suggestive. Similarly, to the extent “SNUG BUGS” connotes “multiple bugs that are held tightly together to one another.” “SNUGGLE BUGZZZ” has the same connotation with respect to the various toys identified in the application and registration.

In a final gambit, applicant contended that four third-party registrations for stuffed toys - AS SUNG AS A BOOK IN A BUG, SNUGGLEBUDDY, SNUGGLEBUMS, and SNUGGANIMALS - show the "dilute nature" of the term SNUG. The Board pointed out, however, that third-party registrations "are generally entitled to little weight in determining the strength of a mark because they are not evidence that the mark is in actual use in the marketplace or that consumers have been exposed to the mark." Moreover, only one of the third-party registrations contained both the words "snug" and "bug," and thus the combination is clearly not diluted.

And so the Board affirmed the refusal to register.

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TTABlog note: Is this a WYHA?

Text Copyright John L. Welch 2014.


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