The USPTO refused registration of the mark CROME for various hair care products, finding the mark confusingly similar to the registered mark CHROME GIRL for, inter alia, hair care products [GIRL disclaimed]. Would you have appealed? In re Azam, Serial No. 85863664 (December 6, 2017) [not precedential] (Opinion by Judge Marc A. Bergsman).

Because the goods in the application and cited registration are, in part, identical, the Board presumed that those goods travel in the same channels of trade to the same classes of consumers.

As to the marks, the Board could not find, and applicant did not provide, any definition of the word “crome,” and so the Board found that “crome” is a misspelling of the word “chrome.”

Applicant contended that its mark CROME “creates a commercial impression of goods that make anyone shine and glow, similar to chrome when it is hit with the sun,” whereas CHROME GIRL “creates a commercial impression of a female who is either made of chrome, a female who endorses chrome, or a shiny girl.” The Board saw little difference in these purported meanings and impressions. “In essence, Applicant argues that its mark means and engenders the commercial impression of goods that will make you shine and glow and the Registrant’s mark means and engenders the impression of a shiny girl.”

The Board concluded that the marks are similar in appearance, sound, connotation, and commercial impression.

Applicant pointed out that there have been no instances of actual confusion during the several years of co-existence of the marks in the marketplace. The CAFC in Majestic Distilling, however, pointed out that “[t]he lack of evidence of actual confusion carries little weight …, especially in an ex parte contest.” [since the registrant has not had an opportunity to address the issue – ed.]. Moreover, there was no evidence regarding the extent of use of the involved marks and thus no showing that there has been meaningful opportunity for confusion to have occurred.

And so the Board affirmed the Section 2(d) refusal to register.