Thursday, December 06, 2018

TTAB Test: Is SNAP FUNNEL Confusable with SNAP & POUR for Funnels?

The USPTO refused registration of the mark SNAP FUNNEL for funnels [FUNNEL disclaimed], finding the mark likely to cause confusion with the registered mark SNAP & POUR for a “funnel which snaps onto plastic containers, including automotive fluids and household cleaners and detergents.” The goods overlap, but what about the marks? Isn’t SNAP & POUR rather weak? How do you think this came out? In re Gabor Alex Stibinger, Serial No. 87144063 (December 4, 2018) (Opinion by Judge Thomas W. Wellington) [not precedential].
The Goods: Applicant’s “funnels” encompass registrant’s snap-on funnels, and so the involved goods are legally identical. Consequently, it is presumed that these overlapping goods travel in the same trade channels to the same classes of consumers. These factors weighed “heavily” in favor of a finding of likely confusion.

Strength of the Cited Mark: Applicant argued that the cited mark SNAP & POUR and the term SNAP are weak due to the existence of “a crowd” of SNAP marks for similar goods. Moreover, Applicant contended that the registered mark “describes the goods” and “is a directive –‘snap, then pour.’” The record evidence, however, did not support the “crowded field” argument. Although applicant cited dozens of third-party registrations, there was no evidence that any of the marks were in use. Registrations alone have no impact on the commercial strength of the cited mark.

Moreover, none of the  third-party registrations involved goods that are related to funnels for household use. However, the record evidence did establish that SNAP is suggestive of features of funnels: i.e., funnels can be snapped onto a container for a tight fit.

The Board disagreed with applicant's assertion that SNAP & POUR is "extremely descriptive." In this ex parte appeal, since the cited mark is registered on the Principal Register, the Board must assume that it is at least suggestive. And the Board found that the mark is suggestive of a feature of funnels. The third-party registrations submitted by applicant corroborate the suggestive nature of the term "snap."

In sum, the Board found no commercial weakness in the term SNAP or in the cited mark, but the term and the mark possess a degree of inherent weakness due to their suggestive connotations. The suggestiveness of SNAP "may decrease the significance of the involved marks' sharing of this same term."

The Marks: The Board found the marks to be more similar than not. The initial and sole source-identifying term in applicant's mark is SNAP. The addition of the generic term FUNNEL does not help distinguish the marks. [Why not? - ed.]. Both marks begin with the mark SNAP, and the first term in a mark is "more likely to be noticed and remembered by consumers and thus plays a dominant role in the mark." [I think consumers will remember SNAP & POUR, not just SNAP - ed.]

We have given consideration to Applicant’s argument that the mark SNAP & POUR conveys an instruction of use to the consumer and, at least with respect to the second part (“pour”), this directive is not expressed in Applicant’s mark. We also bear in mind our finding that the term SNAP and the mark SNAP & POUR are suggestive of the goods and thus possess some inherent weakness. However, we cannot ignore that the same suggestive meanings, i.e., that the funnels can be attached by clipping onto containers and/or are easy (a “snap”) to use, may be conveyed by both two marks.

The Board found that the marks are visually and aurally similar, and also have similar commercial impressions.

Conclusion: Noting that even weak marks are entitled to protection against registration of similar marks for identical goods, the Board affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: What do you think? Did the Board look through the wrong end of the funnel?

Text Copyright John L. Welch 2018.


At 11:40 AM, Anonymous Lawrence Binderow said...

Oh Snap! "SNAP & POUR" sounds functional to me. I found 69 live registrations on the USPTO database that include a disclaimer of the word "SNAP", and 52 live registrations that include a disclaimer of the word "POUR". Why didn't the attorney for SNAP FUNNEL attach photocopies of the specimen images for each of the other SNAP registrations cited in his/her Response? Just asking . . .

At 3:22 PM, Anonymous Anonymous said...

Seems a bit of a stretch to me by the Board to find the marks similar.

It is hard to find consistency of Board decisions although I know they try. There is no "precedent" for mark similarity so you get random opinions from each judge.

I assume the Applicant is probably going to go ahead and use the mark anyway.

I cannot imagine the Registrant would file suit, much less have any chance of winning, against SNAP FUNNEL in Federal Court.

A new category called a "Waste of Everyone's Time"?

Interestingly, Applicant had filed for SNAP FUNNEL for Nutritional Supplements too, but failed to respond to an office action. I wonder what would have happened if they had that registration?


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