Those of a certain age will remember The Cyrkle and their mid 1960s hit songs, “Red Rubber Ball” and “Turn-Down Day.” Patrick McLoughlin, a current member of the band, applied to register the mark THE CYRKLE for entertainment services in the nature of live performances by a musical band, but the USPTO refused registration in view of the registered mark THE CIRCLE for essentially identical services. Would You Have Appealed? McLoughlin did, and lost. In re McLoughlin, Serial No. 86837550 (May 1, 2018) [not precedential] (Opinion by Judge Anthony R. Masiello).

Applicant McLoughlin argued that “Traditionally, consumers of these [services] are sophisticated insofar as the unique and distinguishing spelling of Applicant’s name is well known . . . . Additionally, consumers looking for the band will know the history behind the unique spelling.” [Supposedly the name was suggested by John Lennon – ed.]. The Board, however, found no evidence of consumer sophistication or knowledge of the history of the name. Customers for these services include ordinary consumers who have no particular sophistication, and the Board must base its analysis on the “least sophisticated potential purchasers.” There was no evidence that such purchasers would exercise more than an ordinary degree of care.

Applicant conceded that the marks sound the same; because they sound the same, they have the same meaning. McLoughlin asserted that they have differing connotations, but stated:

In this context, Applicant’s trademark creates a connotation of [a] 60’s band that plays and performs music entertainment for others. . . . In this context, the registered trademark creates a connotation of a band that plays and performs music entertainment.

McLoughlin insisted that the commercial impressions of the marks are different:

Applicant’s trademark THE CYRKLE creates a commercial impression of a unique 60’s band. . . . [T]he registered trademark THE CIRCLE creates a [sic] no immediate commercial impression other than a typical circle.

The Board disagreed: “There is nothing in Applicant’s mark that inherently suggests the era of the 1960’s or the idea of a band.” The Board concluded that the similarities between the marks outweigh the differences.

McLoughlin claimed that there have been no instances of actual confusion, but the Board pointed out the lack of evidence regarding the extent of use of the marks, any geographic overlap, or any other factors that would indicate whether there have been meaningful opportunities for confusion to have occurred. In any event, the lack of evidence of actual confusion carries little weight in an ex parte context.

The Board therefore found that confusion is likely, and it affirmed the refusal.