The USPTO refused registration of the mark PANACHE (in standard characters) for “apple butter; apple purée; processed apples,” finding it likely to cause confusion with the registered mark MANGO MANGO MANGO PRESERVES A PANACHE PARTY PRESERVE and design (shown below) for “fruit preserves” [MANGO and MANGO PRESERVES disclaimed]. How do you think this appeal came out? In re Panache LLC, Serial No. 87182253 (February 20, 2018) [not precedential] (Opinion by Judge Marc A. Bergsman).
Applicant’s “processed apples” fall within the ambit of Registrant’s “fruit preserves” because fruit includes apples and preserves are processed fruit. Also, apple butter and and fruit preserves are both used as “spreads” and therefore are related products. The evidence revealed that several entities sell apple butter and preserves under the same mark at their respective websites. The Board concluded that the goods are in part identical identical and are offered in the same channels of trade.
As to the marks, the Board found that MANGO MANGO with a mango design is the dominant portion of the cited mark.
They are by far the largest elements of Registrant’s mark and most likely to catch consumers’ eyes. As such, they are that part of the mark consumers use to call for Registrant’s preserves. It stretches credulity that consumers would refer to Registrant’s preserves as “A Panache Party Preserve” or “panache”.
“Mango Preserves” is name of the product and, therefore, has little or no source-identifying significance. The term “A Panache Party Preserve” is an advertising tagline telling consumers that Registrant’s MANGO MANGO preserves are high quality products.
The Trademark Examining Attorney argued that “Panache” is the dominant part of Registrant’s mark because the phrase “A Panache Party Preserve” “gives the general impression of being a house
mark.” However, an excerpt from Registrant’s website showed that Registrant refers to itself as MANGO MANGO, not as a “Panache” company. The tagline “A Panache Party Preserve,” creates the commercial impression that Registrant’s preserves have flair or style.
The Board concluded that the marks are not similar and that the first du Pont factor outweighed the other factors. And so it reversed the refusal.