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Saturday, March 20, 2010

Dissecting a trademark into components is a proper way to show that there is no likelihood of confusion.

In Odom’s Tennessee Pride Sausage, Inc. v. FF Acquisition, L.L.C., 2009-1473, an opinion dated March 19, 2010, the Court of Appeals for the Federal Circuit reviewed a decision by the Trademark Trial and Appeal Board (“TTAB”), which discussed whether the defendant’s applied for mark, illustrated below,

                       Defendant’s U.S. Trademark Application Serial No. 77/148,503.

is likely to cause confusion with some of plaintiff’s marks, one of which is illustrated below.

Above is one of Plaintiff's registered marks.

The TTAB opined that,

“Sufficient distinctions exist between the registered marks considered by the board and the applied-for mark to create a different commercial impression. The marks differ in the size and shape of the boys’ hands and feet, the shape and style of their hats, and the fact that FF’s boy has a piece of straw in his mouth and shoes on his feet while Odom’s has neither.”

Plaintiff argued that the [TTAB] inappropriately dissected the marks into these components in performing its analysis.

However, the TTAB reasoned that,

“…it is these individual aspects that collectively create a difference in the overall impressions made by the marks. In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985) (“[I]n articulating reasons for reaching a conclusion on the issue of confusion, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark . . . .”). As the board correctly concluded, the visual distinctions between the marks at issue here create unquestionably different commercial impressions, thereby precluding a finding of likelihood of confusion.”

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