United States: TTABlog test: Are these two “Bull” designs similar for auto parts?
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Here is another opposition to section 2 (d) involving dueling design marks, this time for overlapping and related auto parts and services. Applicant K2 refers to his mark (left) as “an abstract partial body view of a creature-like cattle”. Opposing Streetcar refers to its mark (on the right) as a “fanciful drawing of a bison”. Confusing? You are the judge. StreetCar ORV, LLC d / b / a American Expedition Vehicles v K2 Motor Corp., Opposition n Â° 91248742 (May 3, 2021) [not precedential] (Opinion of Judge David K. Heasley).
Since the parties’ goods are in part identical, a lesser degree of similarity between the marks is necessary to support a conclusion of likely confusion. The board observed that side-by-side comparison is not the correct approach to compare brands. Nonetheless, “affected consumers – motorists looking for custom structural modifications for their vehicles – are likely to perceive the parties’ brands as more similar than dissimilar.”
The bovine subfamily includes cattle and bison. Both designs represent bulls. The two bulls appear from a three-quarter perspective, with their feet planted, heads bowed under prominent bumps, as if threatening to charge. Although one faces the left and the other right, this distinction would be scarcely noticed or remembered for a long time – as analogous cases demonstrate.[.]
The Board concluded that consumers “could easily perceive the Applicant’s design mark as a stylistically altered version of the Opposer’s design mark”.
The Commission also concluded that the Opposer Streetcar brands are “somewhat commercially sound”. Plaintiff K2 submitted dozens of third-party registrations for marks that included a bull or bison figure, but without any evidence regarding the extent of the use of the marks, they were entitled to little probative weight. Further, many of the brands were not so similar to the Streetcars brand, and the products identified were as similar to Streetcar’s products as those of the plaintiff K2.
The Commission noted that “the frequent and common adoption of designs of bulls or bison by others, as evidenced by their records, serves to show that the designs are indicative of the sturdy and solid characteristics or qualities of auto parts.” However, “suggestive registered marks are entitled to protection against the registration of similar confusing marks, in particular marks used on identical or legally identical goods”.
Considering all the DuPont factors, the Commission considered that confusion was likely and supported the opposition.
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