Tuesday, October 18, 2022

TTAB Finds "VIVA MAUDE" for Television Comedy Production Services Confusable with "MAUDE" for a Continuing Comedy Television Series

"Maude" was a television sitcom that ran in the 1970s, starring Bea Arthur. I never saw it so I can't comment on its quality, and if I could, no one would care anyway. Here, the Board upheld a refusal to register the mark VIVA MAUDE for, inter alia, production of television programs featuring comedy, in view of the registered mark MAUDE for "entertainment services, namely, a continuing comedy television series." In re Viva Maude, Inc., Serial No. 90269302 (October 13, 2022) [not precedential] (Opinion by Judge Christen M. English).

The Marks: Applicant argued that the word VIVA dominates its mark and makes the marks different in sound and appearance. The Board, keeping in mind the fallibility of human memory [tell me about it! - ed.] found the marks more similar than dissimilar. As to meaning and connotation, the word VIVA is subordinate to the word MAUDE. VIVA conveys "acclamation, approval, applause, or support for a person named Maude. In this way, the term VIVA draws attention to and emphasizes the name MAUDE in Applicant’s mark."

Applicant claimed that the USPTO has taken a "stance" on VIVA marks by allowing the following pairs of marks to exist on the Register: VIVA DELICIOUS and DELICIOUS TV; VIVA SPRITZ and SPRITZ; and VIVA LA REVOLUTION! and REVOLUTION. The Board was unimpressed. Two of the three pairs involved irrelevant goods and services. In any case, a mere three pairs of registrations "hardly supports" applicant's claim. Finally, the Board noted once again that each case must be decided on its own record.

Applicant next argued that the cited mark MAUDE “is somewhat diluted,” not by third-party use of the term as a mark or descriptor in the field of television entertainment, but by "multiple Wikipedia entries of famous Maudes." [five in all, none of whom I ever heard of - ed.]. Again, the Board was unmoved. Only one Maude was related to entertainment services (a Simpsons character), and there was no evidence regarding public recognition of these individuals.

In sum, the Board concluded that "the marks in their entireties are similar overall in appearance, sound, connotation and commercial impression."

The Services: The Board found that the recitations of services in the application and registration reflect an inherent relationship between the involved services. Moreover, the Examining Attorney submitted 19 third-party use-based registrations for marks covering both ongoing television series generally, including those in the comedy field, and television and film production services. That was enough for the Board to find the services related for Section 2(d) purposes.

Channels of Trade/Classes of Consumers: Applicant argued that the involved services are marketed to different audiences - members of the entertainment industry versus television viewers - but the Board was not persuaded, noting that there were no limitations in the recitations of services.

Consumers of an ongoing television comedy show include “media providers” that purchase or license the program to broadcast or stream, including large television networks and streaming providers as well as small independent media companies. These are the same prospective purchasers of Applicant’s identified services.

Furthermore, the services ultimately reach the same "end user," the television viewer. "Likelihood of confusion under Section 2(d) encompasses situations when relevant no-purchasers are confused, mistaken or deceived." Although the mark VIVA MAUDE is not the title of a televivion program, Applicant acknowledged that television viewers may be exposed to the VIVA MAUDE mark in the credits at the end of a production.

Purchaser Sophistication: The Board found that purchasers of the services are "relatively sophisticated" and will likely exercise some degree of care in their puRchasing decisions. However, the Board observed, even sophisticated purchasers are not immune from source confusion.

Conclusion: The Board found confusion likely, and so it affirmed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: Is this a WYHA?

Text Copyright John L. Welch 2022.


At 9:02 AM, Anonymous Anonymous said...

New here. What's "WYHA" stand for?

At 1:12 PM, Blogger John L. Welch said...

Would You Have Appealed? Usually means that I think the appeal was weak at best.


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