Wednesday, June 16, 2021

CAFC Affirms TTAB: FOCUSVISION Confusable With FOCUS for Data Management Software

In a straightforward, nonprecedential opinion, the CAFC affirmed the TTAB's decision [here] sustaining an opposition to registration of the mark FOCUSVISION for online software for conducting market research, finding confusing likely with the registered mark FOCUS for database management software. On appeal, FocusVision challenged the Board's analysis regarding several of the DuPont factors, but the CAFC found no error in the Board's factual findings, and no error in the Board's ultimate conclusion. FocusVision Worldwide, Inc. v. Information Builders, Inc., 2021 USPQ2d 638 (Fed. 2021) [not precedential].

Likelihood of confusion is a question of law that the CAFC review de novo. The court reviews the Board's factual findings under each DuPont factor for substantial supporting evidence.

FocusVision argued that the Board improperly dissected its mark to concentrate on the word FOCUS, but the disagreed. However, as long as the Board considers the mark as a whole, it may give more or less weight to a part of the mark. Here the Board gave more weigh to FOCUS as the first word in the mark. The word FOCUS does not change the meaning of VISION; as the Board stated, "FOCUS exhorts the consumer to concentrate on, although emphasizing that the focus is on a vision." 

As to the goods and services, Opposer IBI's marks are not limited to any particular field, and so FocusVision's software for market research is encompassed by IBI's marks. FocusVision argued that its services are provided only on its online portal, but there was no such limitation in its recitation of services. 

As to FocusVision's arguments that the expensive software involved would be purchased with a high degree of care, the court observed that "even sophisticated purchaser may be confused by marks that are sufficiently similar." Furthermore, FocusVision's customers include buyers who do not have significant knowledge or experience with such software. 

The evidence supported the Board's finding that IBI's FOCUS mark is inherently and commercially strong, albeit not famous. FocusVisions evidence of third-party registrations was "simply to thin" to show that the FOCUS mark is weak. 

Finally, the Board found the lack of actual confusion to be a neutral factor. Here, the period of time when confusion could have occurred (June 2014 to January 2018) was "relatively short," and so the lack of confusion was not telling.

We have been shown no error in the Board’s finding of neutrality of the other DuPont factors. See TTAB Opinion, 2020 WL 3027606, at *16–18. And we see no error in the Board’s ultimate weighing of the factors it found to favor IBI to reach a determination that confusion was likely.

And so, the CAFC affirmed the Board's decision.

Read comments and post your comment here.

TTABlogger comment: We haven't had an interesting CAFC decision in quite a while.

Text Copyright John L. Welch 2021.


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