Friday, May 05, 2017

TTAB Test: Are Pet Store Services Related to Pet Hotel Services?

The USPTO refused registration of the mark HAPPY HOUND for "retail store services featuring dog and pet products made by others," finding it likely to cause confusion with the mark shown below, for "pet boarding services; pet day care services; pet hotel services" [TRAINING DAYCARE BOARDING SPA disclaimed]. The Board found the marks to be substantially similar, since HAPPY HOUND is the dominant element in the cited mark. But what about the services? How do you think this came out? In re Happy Hound LLC, Serial No. 86167663 (April 3, 2017) [not precedential] (Opinion by Judge Goodman).

Examining Attorney Linda A. Powell made of record excerpts from various websites showing that services such as those of applicant and registrant are advertised and offered together.

The evidence shows that retail stores featuring dog and pet supplies, dog day care and dog boarding services may originate from the same source. Not only does this evidence establish a relationship between Applicant’s and Registrant’s services, but it also establishes that the channels of trade overlap. That is, the third-party websites show that Applicant’s and Registrant’s services are advertised and offered to the same consumers at the same time and, therefore, the services at issue move in the same channels of trade.

In an attempt to demonstrate the weakness of the cited mark, applicant relied on 31 websites that show use of HAPPY HOUND in connection with dog day care, boarding, grooming, pet sitting, dog walking and/or dog training. This evidence, according to the Board, showed that consumers are likely to be accustomed to encountering the phrase HAPPY HOUND in relation to registrant's services, and it tended to show that registrant's mark is relatively weak and entitled to only a narrow scope of protection. The registered mark "will only bar registration of marks as to which the resemblance [to Registrant's mark] is striking enough to cause one seeing it to assume that there is some connection, association or sponsorship between the two.'" The Board concluded that this du Pont factor was neutral. [Why neutral? - ed.]

Applicant maintained that the purchasers of the involved services are sophisticated, but the Board noted that the services are offered to the general public and there was no record evidence to support applicant's contention. In any event, even sophisticated purchasers are not immune from source confusion when highly similar marks are used with related services. The Board found this factor to be neutral.

The Board concluded that confusion is likely and it affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: Seems to me the third-party evidence should have been given more weight.

Text Copyright John L. Welch 2017.


At 2:32 PM, Anonymous Anonymous said...

It's weird that the third party evidence was described at "neutral," but it seems like the evidence would have been much more helpful if the word elements of the mark were less similar--the weakness is less probative where the marks are so similar.

At 5:59 AM, Anonymous Anonymous said...

Maybe it's "neutral" because it only demonstrated weakness on one side of the equation? i.e., maybe the decision would have been different had applicant provided evidence of third party use for pet stores as well?


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