Friday, February 23, 2018

TTAB Test: Are These Two Marks for Fruit Preserves Confusingly Similar?

The USPTO refused registration of the mark PANACHE (in standard characters) for "apple butter; apple purée; processed apples," finding it likely to cause confusion with the registered mark MANGO MANGO MANGO PRESERVES A PANACHE PARTY PRESERVE and design (shown below) for "fruit preserves" [MANGO and MANGO PRESERVES disclaimed]. How do you think this appeal came out? In re Panache LLC, Serial No. 87182253 (February 20, 2018) [not precedential] (Opinion by Judge Marc A. Bergsman).


Applicant's "processed apples" fall within the ambit of Registrant's "fruit preserves" because fruit includes apples and preserves are processed fruit. Also, apple butter and and fruit preserves are both used as "spreads" and therefore are related products. The evidence revealed that several entities sell apple butter and preserves under the same mark at their respective websites. The Board concluded that the goods are in part identical identical and are offered in the same channels of trade.

As to the marks, the Board found that MANGO MANGO with a mango design is the dominant portion of the cited mark.

They are by far the largest elements of Registrant’s mark and most likely to catch consumers’ eyes. As such, they are that part of the mark consumers use to call for Registrant’s preserves. It stretches credulity that consumers would refer to Registrant’s preserves as “A Panache Party Preserve” or “panache”.

"Mango Preserves" is name of the product and, therefore, has little or no source-identifying significance. The term “A Panache Party Preserve” is an advertising tagline telling consumers that Registrant’s MANGO MANGO preserves are high quality products.

The Trademark Examining Attorney argued that “Panache” is the dominant part of Registrant’s mark because the phrase “A Panache Party Preserve” “gives the general impression of being a house
mark.” However, an excerpt from Registrant’s website showed that Registrant refers to itself as MANGO MANGO, not as a “Panache” company. The tagline “A Panache Party Preserve,” creates the commercial impression that Registrant’s preserves have flair or style.

The Board concluded that the marks are not similar and that the first du Pont factor outweighed the other factors. And so it reversed the refusal.

Read comments and post your comment here.

TTABlog comment: Is this a WYHRR? (Would you have refused registration?)

Text Copyright John L. Welch 2018.

4 Comments:

At 9:52 AM, Anonymous Ian said...

I guess I can kind of see where the Examiner was coming from. "Panache" is the only non-descriptive/generic element in the whole registered composite MANGO MANGO mark, and so you could say it is the dominant element of the mark- even though MANGO MANGO is in much larger font, it is descriptive/generic for mango preserves. So consumers are likely to remember "Panache" when encountering that brand of mango preserves and then make a mental association going forward between the word "Panache" and fruit preserves. So another third party (applicant) with a closely related product just named PANACHE could draw upon the goodwill of the registered MANGO MANGO brand.

I'm not sure if I would have refused registration if I was the Examiner, but I can definitely see where he/she was coming from.

 
At 11:17 AM, Anonymous Anonymous said...

Wow, the examining attorney was out in left field. It takes half a second to determine the dominant portion of that stylized mark. Any thought process lasting over 5 seconds on that determination has completely missed the mark.

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

To me it's a WYHRR. I assume the Examiner viewed the word "panache" as source-identifying because it is apparently the name of the registrant, but I think consumers (likely not knowing the name of the registrant) would view the word as mere puffery and not an indication of source (that's if consumer's even noticed the word, which, as has been pointed out, is hardly noticeable within the mark because of its relatively small, plain font and the fact that it is almost hidden by the tail of the much larger, stylized and orange-colored "g" swooping down in front of it). It is such a "background" element in the mark as a whole...

 
At 7:23 PM, Anonymous David Michaels said...

I find that the phrase “A Panache Party Preserve” is entirely generic. Panache (French pronunciation: ​[panaʃ]) is a word of French origin that carries the connotation of flamboyant manner and reckless courage. Dictionary.com says that is a noun and means: grand or flamboyant manner; verve; style; flair. So, if you were to substitute the word Panache with flamboyant, "A Flamboyant Party Preserve;" the generic descriptiveness is more clear.

 

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