Tuesday, March 26, 2019

TTABlog Test: Is "A MOTHER'S TOUCH MOVERS" Confusable with "A WOMAN'S TOUCH MOVING" for Moving Services?

The USPTO refused to register the mark A MOTHER'S TOUCH MOVERS for "transportation of household goods for others" [MOVERS disclaimed], finding a likelihood of confusion with the registered mark A WOMAN'S TOUCH MOVING for "moving and storage of goods; moving company services" [MOVING disclaimed]. The services overlap, as do the channels of trade and classes of consumers. Applicant pointed to two co-existing registrations for marks containing the phrases "MOTHER'S TOUCH" and "WOMAN'S TOUCH" for dentistry services as proof that its mark can co-exist with the cited mark. Are you moved by that argument? In re A Mother’s Touch Movers, LLC, Serial No. 87365368 (March 22, 2019) [not precedential] (Opinion by Judge George C. Pologeorgis).

The Board found the involved marks to be similar in sight and sound. The words "MOTHER'S" and "WOMAN'S" are "interlinked, since the term 'mother' is defined as 'a female parent' and the term 'woman' is defined as 'an adult female person.'" Thus the two marks look and sound alike, and they "create a similar overall commercial impression of a female adding her 'touch' to the moving process."

Applicant relied on two prior registrations - namely, DENTISTRY WITH A WOMAN'S TOUCH and CHILDREN'S DENTISTRY WITH A MOTHER'S TOUCH" for dental services - in arguing that the USPTO has supposedly found that the phrases "a woman's touch" and "a mother's touch" used on similar services are sufficiently dissimilar that confusion is not likely.

The Board pointed out once again, however, that prior decisions and actions by other trademark examining attorneys in allowing the registration of marks have little evidentiary value and are not binding on the Board. Each case must be decided on its own record. Moreover, third-party registrations are entitled to little weight on the issue of confusing similarity because the registrations are "not evidence that the registered marks are actually in use or that the public is familiar with them." [That seems to miss applicant's point. - ed.]. Finally, the history of the commercial relationship between two third-party registrations is not of record, and it may be that one registrant consented to the other's registration.

The Board noted that when the involved services are identical, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion. It concluded that confusion is likely here, and so it affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: Is this a WYHA?

Text Copyright John L. Welch 2019.


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