EASY BEE-ZY KNOCK OUT Not Confusable with OSO EASY and OSO EASY PEASY for Live Plants, Says TTAB

In a "modern-day War of the Roses," the Board dismissed an opposition to registration of the mark EASY BEE-ZY KNOCK OUT for “live plants,” concluding that confusion is not likely with the registered marks OSO EASY and OSO EASY PEASY for live plants. The Board found that "the dissimilarity of the marks and the slight weakness of Opposer’s marks" outweighed the other DuPont factors. Spring Meadow Nursery, Inc. v. The Conard-Pyle Company, Opposition No. 91291336 (January 12, 2026) [not precedential] (Opinion by Judge Jennifer L. Elgin).

Opposer pleaded seven registrations but the Board focused on only two of them: OSO EASY for “live plants” and OSO EASY PEASY for “live plants excluding barley and peas in any form,” because they are "most similar to Applicant’s mark and goods." "If we find a likelihood of confusion as to either of these marks and the associated goods, we need not find it as to Opposer’s other marks. Conversely, if we do not find a likelihood of confusion as to either of these marks, we would not find it as to Opposer’s other marks."

Opposer attempted to prove that its marks are commercially strong under the fifth DuPont factor, but it failed to provide sufficient context for its sales and advertising figures to allow the Board to make that finding. The Board concluded that the marks are of "average commercial strength." Under the sixth factor, the Board found Opposer’s marks OSO EASY and OSO EASY PEASY, to be inherently distinctive, "although their conceptual strength is somewhat limited by the conceptual weakness of the term EASY as it pertains to the ease of growing and maintaining the shrubs."

Since applicant's goods and those of the two registrations are identical or overlap, the Board presumed that the overlapping goods travel in the same trade channels to the same classes of consumers. Moreover, a lesser degree of similarity between the marks is therefore needed to conclude that confusion is likely.

Turning to the marks, the Board found that OSO EASY and OSO EASY PEASY are "inseparable unitary phrases with an unusual spelling of 'oh so,' both imparting to the consumer that growing and caring for the plants is very easy." "Applicant’s mark begins with the phrase EASY BEE-ZY, which, despite some phonetic similarity to a portion of Opposer’s unitary marks, ends with the incongruous phrase KNOCK OUT." "[It] includes a hyphen setting off BEE and ZY, and so the mark specifically directs consumers to understand that the shrubs attract bees as pollinators."

Applicant argued that consumers will likely focus on the KNOCK OUT portion of its mark because it is part of a “family” of KNOCK OUT marks. Although it is "well-established that the family of marks doctrine is not available to overcome a Section 2(d) refusal in an ex parte proceeding," the Board ruled [without citing any legal support] that "evidence of a family of marks also supports the distinctiveness of a defendant’s mark, or a portion thereof (such as KNOCK OUT), in a Section 2(d) analysis." Other evidence of applicant's use of the term KNOCK OUT with other rose plants also supported the argument that the KNOCK OUT portion of applicant's mark is distinctive.

We conclude that the inclusion of the term KNOCK OUT in Applicant’s mark significantly contributes to the other differences we have identified in the marks. In sum, we find that the similarities in appearance, sound, meaning, and overall commercial impression are outweighed by the marks’ significant dissimilarities, particularly considering the limited scope of protection of Opposer’s OSO EASY marks, and in spite of the similarities in goods and channels of trade. The first DuPont factor weighs against a finding of likelihood of confusion.

The Board then determined that the dissimilarity of the marks and the slight weakness of Opposer’s marks outweighed the other DuPont factors. Because opposer failed to prove by a preponderance of the evidence that confusion is likely, the Board dismissed the opposition.

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TTABlogger comment: I have no problem with the result, but question the Board's resort to external evidence to show the distinctiveness of the phrase KNOCK OUT. Moreover, isn't KNOCK OUT inherently distinctive anyway?

Text Copyright John L. Welch 2026.