Wrapping up WYHA Week (TM) …. The Board affirmed a Section 2(d) refusal to register the mark COLORGANICS for various hair care products, finding the mark likely to cause confusion with the registered marks KOLORGANICS and KOLORGANIQUE for various make-up products. Applicant SMA argued that the K versus the C “creates a distinct and different commercial impression,” but it provided no evidence in support and the Board was not impressed. In re SMA Srl, Serial No. 86714378 (August 13, 2018) [not precedential] (Opinion by Judge Cynthia C. Lynch).

The Marks: The letters C and K produce the same sound, as evidenced by dictionary evidence providing pronunciation guidance, and so the marks COLORGANICS and KOLORGANICS would sound identical when consumers call for the goods.  Both marks appear to be a combination of the word “organics” and the word “color,” and they have the same connotation and commercial impression.

As to the cited mark KOLORGANIQUE, it is uncertain how consumers will pronounce the last syllable:

One possible pronunciation of the last syllable – ik – sounds almost identical to the last syllable of Applicant’s mark, while another possible pronunciation – eek – sounds a bit different, but still results in a similar sounding mark overall. Regardless of the relatively insignificant variation in pronunciation of the last syllable, consumers who hear the marks spoken by others might not notice, or could easily forget, the difference.

The Board found that the marks sound quite similar and resemble each other, and engender the same connotation and commercial impressions as combinations of the words “color” and “organic.”

The Board concluded that the first du Pont factor weighed in favor of a finding of likelihood of confusion.

The Goods: Examining Attorney Siddharth Jagannathan provided “substantial evidence of consumer exposure to goods of this type emanating from the same sources under the same marks.” Applicant maintained that the goods are different and serve different purposes, but the Board observed that, “in the broader sense, the goods at issue serve a similar purpose as personal care products.” In any event, the goods need not be identical or serve the same purpose to be related.

The Board found the marketplace evidence persuasive and it concluded that the goods are related for Section 2(d) purposes.

Trade Channels and Customers: The marketplace evidence demonstrated that cosmetics and hair care products are promoted and sold together through the same websites, reaching the same classes of consumers. The Board therefore found that the trade channels and classes of consumers overlap.

Conclusion: The Board found confusion likely, and so it affirmed the refusal to register.

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TTABlog comment: What a week!

Text Copyright John L. Welch 2018.