Tuesday, February 12, 2019

TTABlog Test: Are These Two "I-10" Marks Confusable for Beer?

The USPTO refused registration of the mark shown immediately below, for beer, finding the mark likely to cause confusion with the registered mark I-10 for "beer, ale, lager, stout and porter." The goods overlap, but what about the marks? How do you think this came out? In re RPD Management, LLC, Serial No. 87573250 (February 11, 2019) [not precedential] (Opinion by Judge Peter W. Cataldo).

The Board found that the du Pont factors regarding of the goods, channels of trade and classes of consumers "weigh heavily in favor of likelihood of confusion."

As to the marks, the Board not surprisingly found "I-10" to be the dominant portion of the applied-for mark (the remaining terms appearing in the mark were disclaimed). Applicant's mark is likely to be shortened to "I-10" by consumers.

Applicant argues that the facts of this case are similar to those presented in In re Covalinski, 113 USPQ2d 1166 (TTAB 2014) [TTABlogged here], in which the Board found no likelihood of confusion between the applied-for mark (shown below) for various clothing items and the registered mark RACEGIRL for clothing items that encompassed in part the applicant’s goods.

Here, however, "the vintage wagon in Applicant's mark "clearly displays the wording emblazoned upon the sides, hood and front of the car. The design does not draw the viewer’s attention away from the wording, but rather draws attention to the wording by incorporating it into the design."

A consumer viewing Applicant’s mark cannot look at the design without noticing and reading the wording that covers large portions of the car. The largest lettering, “I-10” and “IPA” are particularly prominently displayed on the door and hood of the wagon. There is no separate design element, such as the “RR letters” in the Covalinski mark to either draw attention away from the wording or render the wording difficult to read. As a result, we find the facts of Covalinski to be distinguishable from those in the instant appeal.

The Board concluded that "the fact that each mark is dominated by the same term 'I-10' simply outweighs the points of

And so the Board affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: WYHA?

Text Copyright John L. Welch 2019.


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