Fourth Circuit Affirms E.D.Va.: VAGISAN Confusable With VAGISIL for Feminine Hygiene Products

The U.S. Court of Appeals for the Fourth Circuit affirmed the E.D.Va's May 23, 2019 decision [TTABlogged here] reversing the TTAB's dismissal of Combe Incorporated's Section 2(d) opposition to registration of the mark VAGISAN for various feminine hygiene products. The Board had found that Combe failed to prove likely confusion with the registered mark VAGISIL for overlapping products. Combe Incorporated v. Dr. August Wolff GmbH & Co. KG Arzneimittel, Appeal No. 19-1674 (Fourth Cir. April 13, 2021) [unpublished].

The district court was persuaded by survey evidence, sales figures, advertising, and unsolicited media recognition that VAGISIL is commercially famous. Due to their "close similarities in sight, sound, and meaning," the court concluded that the marks are "sufficiently similar" to confuse consumers. Moreover, the results of Combe's confusion survey was "powerful evidence of actual confusion."

 

 

Before the Fourth Circuit, Wolfe argued that the district court erred in assessing four of the confusion factors: strength or distinctiveness of the VAGISIL mark, similarity of the two marks, actual confusion, and sophistication of the consumer. The appellate court concluded that the district court’s determinations were not clearly erroneous as to any of these factors.

Given that the district court did not clearly err as to any of its individual assessments of the challenged factors, we have no basis for reconsidering its overarching assessment that the factors demonstrated a reasonable likelihood of confusing the Vagisil and Vagisan marks. The court did not err in entering judgment in favor of Combe and ordering appropriate relief. For these reasons, the judgment of the district court is AFFIRMED.

   

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TTABlogger comment: Survey evidence the key.

Text Copyright John L. Welch 2021.