TTABlog Test: Is KID CHRISTIAN for Sweatshirts Confusable with CHRISTIAN for Wrestling Entertainment Services?
The USPTO refused to register the mark KID CHRISTIAN for "Hats; Shirts; Sweatshirts; Bandanas; Hooded sweatshirts," for entertainment services in the nature of wrestling contests, and for the provision of wrestling news and information. The Office found confusion likely with the registered mark CHRISTIAN for, "entertainment services, namely, wrestling exhibitions and performances by professional wrestlers and entertainers; providing wrestling news and information via a global computer network," The marks are certainly close and the services overlap, but what about applicant's clothing items? How do you think this appeal came out? In re Christian Michael Montemurro-Navarro, Serial No. 97407965 (September 13, 2024) [not precedential] (Opinion by Judge Catherine Dugan O'Connor).
Applicant claimed that the cited mark is weak due to a "crowded field," relying on a single registration for the mark CHRISTIAN CAGE for wrestling services and merchandise. The Board was not impressed. There was no evidence of use of that mark, and in any event a single third-party registration "does not support a finding that the term CHRISTIAN is weak or diluted for wrestling-related goods and services." There was also no evidence that the mark CHRISTIAN is descriptive of the involved goods and services, and so the Board concluded that the cited mark is entitled to a "normal scope of protection."
As to the marks, although the first word of a mark may be dominant, "here the word KID is a short, mono-syllabic word that does little to visually distinguish the marks. Rather, the additional word KID modifies and thereby highlights the second word, CHRISTIAN, rendering CHRISTIAN dominant regardless of its placement." Moreover, "[c]onsumers familiar with the cited CHRISTIAN mark are likely to perceive KID CHRISTIAN as a diminutive version or extension of that brand, potentially a nickname or reference to a child or younger sibling within the same wrestling 'family.'"
The Board concluded that the marks are similar in appearance, sound, connotation and commercial impression due to the shared term CHRISTIAN, and so the first DuPont factor weighed in favor of a finding of likely confusion."
Turning to the goods and services, because the involved services are in part identical, the Board must presume that the channels of trade and classes of purchasers are the same for those legally identical services. As to applicant's class 25 goods, Examining Attorney Bria Stephens submitted Internet evidence "showing that these goods are commonly offered by the same sources as entertainment services in the nature of wrestling exhibitions and performances by professional wrestlers and providing wrestling news and information via a global computer network."
The evidence submitted demonstrates that multiple parties offer the wrestling-related services identified in the cited registration under the same mark as various clothing items identified in the Application. Examples include: WWE’s wrestling exhibitions, news and WWE logo-branded hats, NWA’s wrestling exhibitions, news and NWA-branded hooded sweatshirts, and Impact Wrestling’s wrestling exhibitions, news and Impact Wrestling-branded t-shirts.
Applicant’s goods are marketed to the general population, which includes persons interested in wrestling entertainment, news and information. Furthermore, applicant’s clothing items "are commonly offered by the same source, under the same mark, and often on the same website, as wrestling entertainment, news and information services." In sum, the channels of trade and classes of consumers for applicant’s Class 25 goods overlap with those of registrant's Class 41 services.
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TTABlogger comment: Wrestle with this: is everything related to clothing?
Text Copyright John L. Welch 2024.
posted by John L. Welch @ 9/19/2024
12 comments
12 Comments:
Isn't CHRISTIAN weak in Class 25?
I'm currently reading a blog about clothing-oriented USPTO decisions in the field of trademark law--that must mean clothing, blogging, and trademark legal services are related
Yes, apparently everything is related to clothing. This is ridiculous. The Applicant should have probably filed the Class 25 goods as a separate application to distance those goods from the wrestling entertainment services. Regardless, the Board should look at each class individually. What about an application in Class 25 for Christian Fellowship? Does the Board refuse registration because the Examiner does a Google search and sees that Christian Fellowship is a school that has a wrestling team?
Did the Applicant not argue that there are numerous "Christian" marks for clothing existing side-by-side?
CHRISTIAN DIOR (Reg. No. 567077), CHRISTIAN-UP (Reg. No. 5434527), CHRISTIAN G'LORE (Reg. No. 7219816), GIRLY CHRISTIAN (Reg. No. 6196659), CHRISTIAN FLOW (Reg. No. 7317581), CHRISTIAN AMERICAN (Reg. No. 5552081), CHRISTIAN STRONG (Reg. No. 4662450) (there are many more).
Those registrations combined with evidence of those marks being used for clothing in U.S. commerce should have been enough to get KID CHRISTIAN approved in Class 25. I'm not sure why the Applicant cited the CHRISTIAN CAGE mark and nothing else.
I guess this is an instance of a bad record on appeal leading to the case being decided on that bad record. From that point of view the decision make more sense.
Why was the registered mark ever allowed; it's primarily merely a surname, is it not?
Maybe, but I've never met, or even heard of, a person with the surname "Christian." On the other hand, I have met many people with first name "Christian." But first names are not surnames. Also, I think just about anyone in the U.S. that you asked would say that the primary meaning of "Christian" is "follower of Christ" (or something to that effect). So, I'm not so sure about the surname argument you're putting forth.
Fletcher Christian was an English sailor who led the mutiny on the Bounty in 1789
Nice. This is 2:27pm. After you pointed that out, I asked ChatGPT who told me this: "The surname "Christian" is moderately common in the U.S., though not as widespread as some other surnames. According to data from the U.S. Census Bureau: In the 2010 Census, "Christian" ranked as the **402nd most common surname** in the U.S. There were approximately **77,000 individuals** with the surname "Christian" at that time. This places it among the more recognizable but not extremely frequent surnames."
So there you go. But I still think that if you asked the average U.S. person what "Christian" primarily refers to, they'd say it's a religious affiliation.
You have the wrong judge as the author!
Thank you. Corrections always appreciated.
I do not see the surname issue here. The key to a surname refusal is the word "merely" -- i.e, the term is "merely a surname." Christian has other meanings, including as a first name and a person who believes in Christianity. I think the Applicant's best argument here was the challenge to argue that the mark is inherently weak when used in Class 25 due to the numerous marks on the register and in use. However, the Applicant failed to do so. Malpractice??
Interestingly enough, CHRISTIAN and CHRISTIAN CAGE identify the same professional wrestler. CHRISTIAN CAGE is owned by the individual performer, while CHRISTIAN is registered to his prior employer.
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