Wednesday, October 24, 2018

ABBY & Hippo Design for Plush Toys Confusable with ABBY for Dolls, Says TTAB

The Board affirmed a Section 2(d) refusal of the word+design mark shown immediately below, for "plush toys," finding the mark likely to cause confusion with the registered mark ABBY, in standard character form, for "toys, namely, dolls, fashion dolls, electronic dolls, animated dolls, doll clothing and doll accessories." Applicant argued that the hippopotamus figure is the dominant element of its mark, but the Board disagreed. In re ChuChu TV Studios, aka ChuChu TV, Serial No. 87005177 (October 19, 2018) [not precedential] (Opinion by Judge Francie R. Gorowitz).

The Goods: The Board had little difficulty finding the involved goods to be related. Examining Attorney David Gearhart submitted numerous webpages showing that dolls and plush toys are sold on manufacturers' websites. While plush toys are typically animals, a doll in the shape of a human figure can also be "plush" (i.e., "stuffed."). See, for example, the Disney store:

The Marks: The Board observed that in a composites word+design mark, the verbal portion of the mark is the part most likely to indicate the origin of the goods. Applicant relied on In re Covalinski, 113 USPQ2d 1166 (TTAB 2014), where the the cited mark RACEGIRL was found to be different from the applicant's mark, shown here:

There, the Board noted, the literal portion of the mark REDNECK RACEGIRL was "difficult to distinguish from the design portion of the mark." Here, however, ABBY is separate and apart from the hippo design, and even though considerably smaller than the hippo, it is "readily discernible, and its location and use in the manner of a caption makes it appear to be the 'name' of the depicted hippo." The consumer is drawn to the word ABBY and invited to identify the hippo by that name.

Thus the word ABBY in applicant's mark is "considerably different than the words REDNECK RACEGIRL in Covalinski."

Conclusion: The Board therefore found confusion likely and it affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: The word ABBY is awfully small in applicant's mark. Do you think consumers might perceive applicant's mark as the "hippo" brand?

Text Copyright John L. Welch 2018.


At 9:30 AM, Anonymous Michael Hall said...

In a similar case involving a prominent design of a four-legged animal and a much smaller word seeming to indicate the animal's name (Serial No. 77450085), the Board reversed the refusal. However, that case was not exactly on all fours (I understand this blog appreciates bad puns).


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