Despite partly identical services and overlapping customers and channels of trade, the Board dismissed this opposition to registration of the two word+design marks shown below, for “underwriting and administration of life insurance, health insurance, and annuities,” finding the marks not likely to cause confusion with the registered mark BANKERS LIFE for “insurance underwriting services.” Purchaser sophistication, lack of actual confusion, and the differences between the marks proved fatal to the opposition. CDOC, Inc. v. Liberty Bankers Life Insurance Company and The Capitol Life Insurance Company, Oppositions Nos. 91236945 and 91237330 (January 16, 2020) [not precedential] (Opionion by Judge Marc A. Bergsman).

Purchasing Conditions: The Board found that, in view of “the nature of the services and the personalized nature of the parties’ marketing efforts,” purchasers of the parties’ insurance and annuity products will exercise a relatively high degree of purchasing care. “These type of services are not the kind that reasonably prudent purchasers buy without researching the underwriters to some degree.” And so the Board found that this factor weighed in favor of applicant.

No Actual Confusion: The lack of any evidence of actual confusion also weighed in applicant’s favor:

Since 2007, the parties have been selling the same services to the same target demographic (i.e., Americans at or near retirement age, as well as those already in retirement). Both parties, especially Opposer, are well known and well regarded in the financial services industry. Under these circumstances, not one of the 15,000 agents selling insurance for the parties have reported one instance of actual confusion.

Strength of Opposer’s Mark: Evidence of third-party use and registration of marks containing the word BANKER led the Board to conclude that opposer’s mark is suggestive but inherently protectable. In light of extensive advertising and promotional efforts and media references, the Board found the mark to be commercially strong. It concluded that, “[a]lthough BANKERS LIFE is suggestive, the commercial strength of the mark places it on the strong side of the spectrum especially without a significant showing of third-party use or registration of the term ‘Bankers Life.'”

The Marks: The Board deemed the phrase LIBERTY BANKERS LIFE to be the dominant element of applicant’s marks, given its position as the leading part of the literal portion of the marks. Moreover, the large American flag design reinforces or highlights the word “Liberty” by implying financial freedom or freedom from a financial problem. The evidence showed that applicant’s marks are sometimes shortened to LIBERTY BANKERS LIFE, but not BANKERS LIFE.

Even though the parties’ marks all contain the term “Bankers Life,” Applicants’ additions of the word “Liberty” and the stylized design of the American flag create marks that are sufficiently distinct from Opposer’s mark BANKERS LIFE because, as discussed above, the term “Bankers Life” is suggestive.

Conclusion: Finding confusion unlikely, the Board dismissed the oppositions.

Read comments and post your comment here.

TTABlog comment: What about the least sophisticated purchaser? This sophisticated purchaser factor seems often to be a make-weight, with the Board either giving it favorable weight when it wants to find confusion likely, or pooh-poohing it on the ground that even sophisticated purchasers can be confused by similar marks for similar goods/services.

PS: Compare this decision with the recent one finding ACCELETERM confusable with LINCOLN TERMACCEL for insurance services [TTABlogged here]. Are they reconcilable?

Text Copyright John L. Welch 2020.