CAFC Affirms TTAB: ETHIK CLOTHING CO. & Design Confusable With ETHIKA for Clothing

In a nonprecedential disposition, the CAFC upheld the TTAB's decision [pdf here] granting a petition for cancellation of a registration for the mark ETHIK CLOTHING CO. & Design for various clothing items. The Board deemed confusion likely with the mark ETHIKA for overlapping clothing items. The appellate court concluded that the Board correctly analyzed the marks at issue, and the court rejected appellant's newly presented argument regarding the weakness of the ETHIKA mark. Alexander Hage-Boutros v. Ethika, Inc., Appeal No. 2021-1615 (Fed. Cir. February 4, 2022) [not precedential].

Appellant Hage-Boutros, appearing pro se, contended that the Board improperly dissected his mark instead of considering the involved marks in their entireties. Not so, said the court. The Board properly gave little weight to the descriptive term CLOTHING CO. and likewise properly discounted the impact of the design portion of the mark "because clothing consumers are likely to verbally refer to the goods by the term ETHIK rather than by design or by non-distinctive words."

Hage-Boutros raised a new argument on appeal: that the differences in the marks eliminate any likelihood of confusion because petitioner's mark is weak in view of three third-party registrations and a pending application (for marks containing the term ETHIC or ETHICS). Therefore, he asserted, petitioner's s mark should be accorded a narrower scope of protection. The court noted that it does not generally consider issues "not passed on below" or entertain arguments not presented to the lower tribunal. However, a pro se party is given some leeway: "a court of appeals may be appropriately less stringent in requiring that the issue have been raised explicitly below." And so, the court chose to consider this argument.

However, Hage-Boutros's new argument failed on the merits. He offered no evidence regarding the extent or impact of third-party use. Quoting Palm Bay Imports, the court observed: "The probative value of third-party trademarks depends entirely upon their usage" and "where the record includes no evidence of third-party uses[.] the probative value of this evidence is thus minimal."

Finally, the court rejected petitioner's claim that the appeal was frivolous and therefore warranted sanctions. The TTAB's judgment was not "so plainly correct and the legal authority contrary to appellant's position so clear that there really is no appealable issue." "Mr. Hage-Boutros may have presented an unpersuasive argument, but his appeal was not clearly frivolous under the auspices of Rule 38."

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TTABlogger comment: The same petitioner is currently opposing Mr. Hage-Boutros's applications to register ETHIK BMX and ETHIK SKATE (in the same design form as above), for athletic clothing.

Text Copyright John L. Welch 2022.