Thursday, October 26, 2017

TTAB Dismisses 2(d) Opposition, Finding Chevron Marks Dissimilar for Footwear

The Board dismissed a Section 2(d) opposition to registration of the design mark shown below left, finding it not confusingly similar to the registered design mark shown below right, both for shoes, footwear, shirts, pants, jackets, shorts, tights, T-shirts, and other clothing items. The Board found "significant differences" between the marks, and further that "chevron designs are used in many similar ways in the marketplace for clothing and athletic shoes, and therefore a chevron design is not a strong source identifier for those goods." Brooks Sports, Inc. v. Anta (China) Co., Ltd., Opposition No. 91223228 (October 24, 2017) [not precedential] (Opinion by Judge Francie R. Gorowitz).

Applicant Anta did not dispute that the involved goods are identical in part, or that the channels of trade and classes of consumers are overlapping.

Fame: Opposer Brooks asserted that its chevron mark is famous, but failed to provide specific sales information, and so the Board could not how opposer's sales compare with other vendors of clothing and footwear. It did submit more extensive information regarding its advertising efforts, and it pointed to three particular advertisements. However, in those advertisements, the only use of the design mark alone was as a "footpath" with people running on it. The Board found no evidence that customers recognize the running path as a chevron design or as opposer's mark. A brand and market survey provided minimal  information regarding the class of products involved or the universe of the survey. Moreover, it was unclear which of opposer's brands were included in the survey. And the Board noted that the survey was conducted after Anta filed its application to register. Based on this evidence, the Board found that Brooks did not establish that its design mark is famous for likelihood of confusion  purposes.

Third-party Use and Registration: Anta contended that "[t]he inherent strength of the Brooks Marks is minimal in light of the ornamental significance of chevrons ... for clothing and footwear." The Board observed that here, "the dual significance of the marks, as both source identifiers and ornamentation, is at issue in determining the strength of Opposer's marks."

Anta introduced 25 use-based registrations for clothing, in which the marks contained different chevron designs, and Internet evidence of eight different "chevron" marks use on athletic shoes. Relying on Juice Generation, the Board found that these registrations and examples  of use "evidence the common use of chevron designs in the clothing and athletic shoe fields. Such common use indicates that consumers have become conditioned to encountering chevron designs in connection with clothing and athletic shoes, and that they will focus on other features to determine source."

The Marks: In addition to the chevron design mark, Brooks asserted its registered BROOKS & Design mark, shown below. The Board, however, found the word BROOKS to be dominant and it readily concluded that Anta's chevron mark is not similar.

Comparing the two chevron design marks, the Board found them dissimilar.

While there are visual similarities between the marks, the marks consist of different representations of chevron designs, with Opposer’s design representing a running path and Applicant’s design representing the tip of an arrow. Because chevron designs are commonly used, in whole or in part, as marks in connection with clothing and footwear, we find that the dissimilarities in the marks outweigh the similarities and thus, we find that the marks are not similar.

Conclusion: The Board found no likelihood of confusion, and so it dismissed the opposition.

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TTABlog comment: Applicant Anta is represented in this proceeding by Christina Licursi and Ryan van Olst of Wolf Greenfield.

Text Copyright John L. Welch 2017.


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