Wednesday, August 14, 2019

TTABlog Test: Are These Two Four-Legged Animal Design Marks Confusable for Clothing?

Another test for you. Abercrombie & Fitch opposed an application to register the mark RED DEAR & Design, shown below left, for various clothing items, claiming a likelihood of confusion with its two registered "Moose logo" marks shown below right, for overlapping clothing items. Applicant Shnittger, appearing pro se, stipulated to several facts, including Abercrombie's ownership and the validity of the registrations, and a congruence of consumers. Shnittger also admitted that the marks depict "profiles of full-bodies, four-legged animals with antlers in silhouette form." But what about the words "Red Dear?" Shnittger argued that no one company should be allowed to associate any "antlered" animal with its brand. How do you think this came out? Abercrombie & Fitch Trading Co. v. Isabella Elisabeth Shnittger, Opposition No. 91218738 (August 12, 2019) [not precedential] (Opinion by Judge Michael B. Adlin).

The Board first addressed Abercrombie's claim that its marks are famous. Opposer's evidence, filed under seal, showed that it has been "quite successful" in selling clothing under its marks, but its sales and advertising figures and website visits were not placed in context vis-a-vis other brands of clothing, nor was it clear to what extent consumers were exposed to the pleaded marks as opposed to Abercrombie's various other marks.

Nonetheless, the evidence established that the pleaded marks are "renowned" in the clothing field and are "commercially quite strong."

Of course, the overlapping goods are presumed to travel through the same trade channels to the same classes of consumers. As a result, a lesser degree of similarity between the marks at issue is necessary to support a finding of likely confusion.

Turning to the marks, the Board acknowledged that there are differences between the animals at issue, but the marks are "sufficiently similar in terms of their commercial impression that clothing consumers who encounter them would be likely to assume a connection between the parties."

Here, at least some consumers familiar with Opposer’s marks who later encounter Applicant’s mark will not remember which direction Opposer’s animal was facing, what its antlers looked like specifically or how its mouth was depicted. Rather, because of the fallibility of memory, they will have the “general rather than a specific impression” that Applicant’s mark, like Opposer’s, features a “full-bodied, four-legged anima[l] with antlers in silhouette form.”

As to the words "Red Dear" in Schnittger's mark, they are dwarfed by the deer design. Moreover, since the word "Dear" is the phonetic equivalent of "deer," it might call to mind Abercrombie's marks, which might also appear to some as a deer. [That's a stretch! - ed.]. For what it's worth, Applicant Schnittger admitted that "a moose is part of the deer family biologically . . . ."

The Board cited several prior cases in which the addition of words to a design was not enough to avoid confusion. For example:

The Board concluded that the differences between Abercrombie's and Schnittger's marks were insufficient to overcome the similarities when these "profiles of full-bodied, four-legged animals in silhouette form" are used on identical goods.

The Board therefore found confusion likely and it sustained the opposition, declining to reach Opposer's dilution claim. [In any event, since Abercrombie failed to prove fame in the likelihood of confusion context, it perforce could not meet the higher standard for dilution fame - ed.].

Read comments and post your comment here.

TTABlog comment: Oh, deer! How prominent must the words RED DEAR be to change the outcome?

Text Copyright John L. Welch 2019.


At 7:25 PM, Blogger EMeltzer said...

Without reference to any 2(d) principles, etc., for me it's an elk vs. a moose, with the elk in a classic elk "calling" posture. But, I once purchased a house and didn't realize there wasn't a ceiling light in the living room until I moved in, so the TTAB probably has it's finger on the consumer pulse regarding attention to detail.

At 11:45 PM, Blogger Isabella said...

My name is Isabella Schnittger, and I am the Applicant of the Red Dear logo. First of all, I am thankful that people get informed about my Trademark Application to the TTAB. I still believe that my Red Dear logo does not create any likelihood of confusion with the opposer's design although my logo has four legs like every antlered animal. I wanted to register my idea of my Red Dear because if someone would google the name red dear instead red deer, it will always show up a real deer and nothing else. I thought that is a great idea because my design is a red deer and the words sounds like red deer even if the word are red dear. However, is my Red Dear logo, which is a real looking deer confusing on clothing for costumers because my design shows a male stag with seven point antlers that has its mouth wide open because of its grunt, and the words Red Dear below? No! I believe strongly that costumers are able to distinguish between a moose and a deer and the words Red Dear. Also, wasn't the opposer famous for its antlered animal, and for its name for a long period? How can my Red Deer logo and the words Red Dear create such a confusion since costumers are well educated and aware when they purchase new clothings in a shop or online? I read the opinion of the judge of TTAB, and I am not agree since the TTAB does not make a clear difference between a deer and a moose. Even if both designs are full bodies and four legged antlered animals, the antlered animals are different in their appearance, which I think is important because my Red Dear is facing the right side whereas opposer's animal is facing the left side. Also, the judge mentioned the importance of the power of fame of opposer's mark which everyone know from social media and news that the fame of the antlered logo has gone long time ago, but opposer's big name has remained However, my Red Dear idea is not a copy of a time where people needed an antlered animal logo to show they were rich, young and sexy...I created the design because I wanted something that represent the nature. I wanted my logo on eco - friendly products that are only made in the United States of America. Also, I believed that someday my Red Dear will be well known by people who are protecting our nature for the next generations. Therefore, my Red Dear is powerful and resistant by nature!

Isabella Schnittger


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