The USPTO and the Trademark Trial and Appeal Board (“TTAB” or the “Board”) have been trending towards refusing marks and affirming refusals where the trademarks are legally identical, and where the goods are complementary, or in other cases where the goods are not intrinsically related. The burden is on the Applicant to adopt a mark that is not confusingly similar to another brand in its industry or in a related industry. Where the trademarks are identical or nearly identical, a lesser degree of relatedness between the goods is necessary to support a finding of likely confusion. See a recent Board decision, In re Spin80, Inc., U.S. Serial No. 87116915 (January 31, 2018) [not precedential], where a refusal was affirmed for the marks CODEGREEN for nutritional supplements in pill and powder form, and CODE GREEN for fruit beverages and vegetable based food beverages.
The Board concluded that the marks were indistinguishable in appearance, and identical in sound, meaning and commercial impression. Any applicant that adopts an identical mark or a nearly identical mark is immediately at a disadvantage, since a different standard will apply in the likelihood of confusion analysis. A lesser degree of similarity between the goods or services will suffice. The Examining Attorney produced evidence of third-party websites. These five websites showed that one mark was used in connection with both fruit and juice beverages, and nutritional supplements in a pill form. The Examiner also submitted evidence of 11 use-based third-party registrations that identified both fruit beverages and nutritional supplements in pill form. This evidence demonstrates that the goods may emanate from the same source. Based on this evidence, the Board determined that the goods were related, and that consumers could mistakenly believe the goods originated from the same source.
Upon reviewing the identifications of the Applicant and Registrant, the Board noted there were no restrictions indicated. This means that there is an assumption that the goods travel in all the normal and usual channels of trade. The Board held that the trade channels and classes of consumers overlapped. The refusal to register the mark was affirmed.