Wednesday, April 08, 2020

Ric Flair Loses TTAB Appeal of Section 2(d) Refusal of NATURE BOY for Clothing

Professional wrestler Ric Flair lost this bout at the TTAB, the Board affirming a Section 2(d) refusal to register the mark NATURE BOY for various items of clothing, in view of the registered mark NATURE BOYS for overlapping clothing items [BOYS disclaimed]. Flair claimed that because of his fame as "the greatest professional wrestler of all time," and his nickname "Nature Boy," consumers will perceive the association between him and the mark NATURE BOY, thus changing the commercial impression of the mark. The Board shook off that argument and tossed the appeal out of the TTAB ring. In re Ric Flair, LLC, Application Serial No. 87884420 (April 6, 2020) [not precedential] (Opinion by Judge Marc A. Bergsman).

Flair contended that his mark referred solely to himself, while registrant uses the mark NATURE BOYS to refer to its customers, who enjoy fishing and seek gear to wear while fishing. The Board, however, observed that the goods identified in the cited registration are not all limited to fishing, but include shirts, t-shirts, and tank tops, as does the subject application. Similarly, applicant's goods are not limited to clothing items that refer to any individual, and therefore the Board saw no basis for distinguishing the meaning or commercial impression of the marks at issue.

Flair also contended that "the renown that NATURE BOY has achieved as  professional wrestler Ric Flair’s nickname engenders a different commercial impression than the mark NATURE BOYS in the cited registration." The Board side-stepped that contention:

Again, the problem with this argument is that it requires us to go beyond the mark in the drawing page and description of goods in the application and to use extrinsic evidence to distinguish the marks. Notwithstanding Applicant’s argument and evidence regarding the actual scope of its own and the cited Registrant’s use of its mark, we may not limit, by resort to extrinsic evidence, the scope of goods as identified in the cited registration or in the subject application to change the commercial impression of the marks.

The Board noted that, if the description of goods in Flair's application were limited to wresting t-shirts and wrestling tank tops, there "might be an argument" that the mark has a specific connotation referring to Flair. "Here, the record does not show that NATURE BOY when used in connection with the clothing identified in the application has any meaning associated with Ric Flair, aka The Nature Boy."

The Board therefore affirmed the refusal to register.

Read comments and post your comment here.

TTABlog comment: Suppose Flair's goods were limited to wrestling clothing. The cited registration covers all types of t-shirts and tank tops, including wrestling t-shirts and tank tops. Is reverse confusion likely? Will wrestling-savvy consumers think registrant's goods emanate from Ric Flair?

Ringo Starr met with a similar fate in his attempt to register RINGO for various clothing items "all depicting the name and image of a famous entertainer." There the Board pointed out the possiblility of reverse confusion (or, as I called it, "noisufnoc"). TTABlogged here

Text Copyright John L. Welch 2020.


At 10:20 AM, Anonymous Lawrence H. Binderow said...

Wait! In your 2009 blog regarding the RINGO mark, it includes the following: "As to the marks, the Board observed that they are similar, if not identical, in connotation and commercial impression: both identify and refer to the famous entertainer, Ringo Starr." If that's the case, did Ringo Starr give his consent to the prior registrant to use and register his "famous" name with the USPTO? And if he didn't, how did the mark achieve registration status without his consent? Too bad for Ringo, It Didn't Come Easy.

At 6:41 AM, Blogger John L. Welch said...

Apparently, the examining attorney at the time didn't see the connection.

At 10:57 AM, Anonymous Elijah said...

In re Ric Flair, LLC the Trademark Trial and Appeal Board (TTAB) reviewed and affirmed an examiner’s refusal to register applicant professional wrestler Ric Flair’s mark NATURE BOY because it was likely to cause confusion with the registered mark NATURE BOYS. The decision was based on a finding that the marks were similar, and the goods are in part identical. But what if Ric Flair and his counsel had decided to specifically focus their mark on wrestling clothes instead of broadly saying “T-shirts, tank-tops, and sweatshirts”? Would reserve confusion occur?

Traditionally, “forward confusion” happens when consumers make the mistake of thinking a junior user’s goods (junior meaning started to use the mark after a senior user) are from the same source as a senior user’s goods. Consumers want to buy the senior user’s goods but wrongly buy the junior’s goods because the marks are similar. 4 McCarthy on Trademarks and Unfair Competition § 23:10 (5th ed.)

In “reverse confusion”, consumers purchase the senior user’s goods under the mistaken impression that they are buying the junior user’s goods. So, the junior user’s advertising and promotion overwhelms the senior user’s reputation in the market that consumers are likely to be confused into thinking that the senior user’s goods are the junior’s goods. Reverse confusion is shown when evidence demonstrations the junior user was able to swamp the reputation of the senior user with a relatively larger advertising campaign. 4 McCarthy on Trademarks and Unfair Competition § 23:10 (5th ed.)

In re Ric Flair, LLC, Judge Bergsman notes that Ric Flair would have a stronger argument if he had described the goods related to his mark as wresting t-shirts or wresting tank-tops because they would have a stronger connection to Ric Flair as a wrestler. I think this means that focusing in wrestling clothes alone would not result in reverse confusion.

Applicant Rick Flair would be considered the junior user while the registrant is the senior user. So, the question is whether Ric Flair advertising and promoting NATURE BOY wrestling t-shirts and tank-tops in the market would confuse consumers into buying and associating the shirts of registrant’s mark NATURE BOYS? Would Ric Flair’s advertising wrestling t-shirts damage the registrant’s reputation and trademark value?

I think the difference in wrestling t-shirts and wrestling tank-tops and shirts sold for fishing is significant. The consumers seeking fishing apparel and consumers seeking wrestling style apparel are likely going to look for these items with specificity. Therefore, consumers are likely to be able to perceive the source of the mark relatively quickly. Similarly, the channels of trade are likely going to be distinct because it is improbable that shirts related to fishing and the outdoors are sold in the same place or website as t-shirts and tank-tops related to wrestling. I disagree with the Judge Bergsman when he says the plural does not help to differentiate the marks. Wrestling savvy consumers would be immediately suspicious of the plural in NATURE BOYS because Ric Flair was not involved in any kind of group of wrestlers by that name.

Overall, if Rick Flair had specified that he would be selling wrestling t-shirt and tank-tops there would low chance of reverse confusion occurring because the goods would become differentiated.


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