The Director of the USPTO intervened in this appeal from the Board’s dismissal [pdf here] of an opposition to registration of the mark shown below right, for various clothing items. The Board found confusion unlikely with the two registered marks shown below left, the first for “purses and wallets” and the second for “handbags, shoulder bags, tote bags, satchels, purses, clutches, and wallets.” The Board found the first DuPont factor – the similarity or dissimilarity of the marks – to be dispositive. How do you think this appeal came out? Tribe of Two, LLC v. Vidal, Appeal No. 2023-1193 (Fed. Cir. September 3, 2024) [not precedential].
The CAFC ruled that the Board did not err in its DuPont analysis: “the TTAB found [Applicant] Eritaj’s and Tribe of Two’s marks to be visually distinct and create different commercial impressions (factor 1), despite finding overlapping goods [actually, the Board found the goods to be related, not overlapping – ed.] and channels of trade and classes of consumers (factors 2 and 3).”
Tribe of Two argued that TTAB should have found the literal elements of the Eritaj’s mark to be dominant. The CAFC sided with the Board:
The TTAB concluded that, although the letters “TT” are discernible in Eritaj’s mark, “they do not form the dominant impression. Instead, the inversion of the letters T, the doubled horizontal lines, and the use of negative space to create a rectangle among the vertical and horizontal lines creates the impression of a rectangular geometric design. TTAB Decision, 2022 WL 4397523, at *7. This finding has substantial-evidence support.
At oral argument, Tribe of Two “devoted considerable time to argue that the TTAB overlooked possible coloring and shading of the letters ‘TT’ of Eritaj’s marks, which Tribe of Two asserts would allow an emphasis on the letter Ts and deemphasize its stylized mark.” [The nose-of-wax argument – ed.]. Tribe of Two conceded, however, that this argument was not expressly made before the Board. The CAFC noted that this argument was “barely noted in Tribe of Two’s appellate briefing.” The court concluded that the argument was forfeited because it was insufficiently developed, and therefore there was no error by the TTAB.
Finally, Tribe of Two claimed that the Board should have given it the benefit of the doubt because it was the senior user. The CAFC pooh-poohed that argument:
Tribe of Two, however, has not identified where the TTAB has expressed any doubt regarding a likelihood of confusion between the marks. On de novo review, nor do we. Like the TTAB, we find the marks so dissimilar that, in this case, this single DuPont factor is dispositive. TTAB Decision, 2022 WL 4397523, at *8. And unlike Century 21, where the TTAB decision there noted that the case was “difficult to resolve” and that “the prior mark is famous,” 970 F.2d at 878, neither circumstance is present here.
And so, the CAFC affirmed the Board’s decision
Read comments and post your comment here.
TTABlogger comment: Is this an appellate WYHA? The nose-of-wax argument seems to be appearing more frequently lately.
Text Copyright John L. Welch 2024.