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Calling to Mind Hunting from an Elevated Position

Posted by James Juo | Sep 26, 2023 | 0 Comments

If competing trademarks convey the same idea, meaning or commercial impression, then they might be confusingly similar if used on the same goods. See, e.g., Proctor & Gamble Co. v. Conway, 419 F.2d 1332, 164 USPQ 301, 304 (CCPA 1970) (holding MISTER STAIN likely to be confused with MR. CLEAN on cleaning products); In re M. Serman & Co., 223 USPQ 52, 53 (TTAB 1984) (holding CITY WOMAN for ladies' blouses likely to be confused with CITY GIRL for a variety of female clothing); H. Sichel Sohne, GmbH v. John Gross & Co., 204 USPQ 257, 260- 61 (TTAB 1979) (holding BLUE NUN for wines likely to be confused with BLUE CHAPEL for the same goods).

Consumers do not focus on minutia but rather on overall impressions. See, e.g., In re John Scarne Games, Inc., 120 USPQ 315, 315-16 (TTAB 1959) (“Purchasers of game boards do not engage in trademark syllable counting — they are governed by general impressions made by appearance or sound, or both.”).

There is no mechanical test to select the dominant element of a mark. Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1059 (TTAB 2017).

While the first term in a mark generally is considered to be the feature which will be remembered by consumers, this is not invariably the case. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014) (“the Board did not err in finding that ‘STONE LION CAPITAL' is ‘similar in sight, sound, meaning, and overall commercial impression' to ‘LION CAPITAL' and ‘LION.'”); In re Chatam Int'l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1946 (Fed. Cir. 2004) (“Viewed in their entireties with non-dominant features appropriately discounted, the marks [GASPAR'S ALE for beer and ale and JOSE GASPAR GOLD for tequila] become nearly identical.”).


The TTAB recently noted that the phrases DEATH FROM ABOVE and HUNT FROM ABOVE are both unitary marks because the words “Death” and “Hunt” do not create a commercial impression separate and apart from the marks as a whole—that is, “Death” and “Hunt” are so integrated into the marks that they cannot be regarded as separable. In re Heartland Climbers, LLC, Ser. No. 90885309 (TTAB Sept. 15, 2023).

Both DEATH FROM ABOVE and HUNT FROM ABOVE are unitary phrases that are more than the sum of their parts. Dena Corp. v. Belvedere Int'l, Inc., 950 F.2d 1555, 1561, 21 USPQ2d 1047, 1052 (Fed. Cir. 1991) (finding EUROPEAN FORMULA and design for cosmetic products not unitary since the “elements are not so merged together that they cannot be regarded as separate” and the proximity of the words to the design feature “does not endow the whole with a single, integrated, and distinct commercial impression.”).


            Given the similarities between the marks and identity of the goods, consumers familiar with the mark HUNT FROM ABOVE are likely to perceive Applicant's mark DEATH FROM ABOVE as a variant mark denoting a product line extension into a specific type of hunting stand. See, e.g., Double Coin Holdings, Ltd. v. Tru Dev., 2019 USPQ2d 3373409 at *7 (TTAB 2019) (“Here, ROAD WARRIOR [for tires] looks, sounds, and conveys the impression of being a line extension of WARRIOR.”); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009) (VANTAGE TITAN “more likely to be considered another product from the previously anonymous source of TITAN medical diagnostic apparatus, namely, medical ultrasound devices”); Schieffelin & Co. v. Molson Cos., Ltd., 9 USPQ2d 2069, 2073 (TTAB 1989) (“Those consumers who do recognize the differences in the marks may believe that applicant's mark is a variation of opposer's mark that opposer has adopted for use on a different product.”).


Consumers “may have but dim recollections from having previously seen or heard one or the other of the involved marks.” Neutrogena Corp. v. Bristol-Myers Co., 410 F.2d 1391, 161 USPQ 687, 688 (CCPA 1969). Thus, when comparing the marks overall, they are similar, if not identical, in connotation and commercial impression.

Because the goods for both marks were for hunting stands, the TTAB also found that such identical goods were presumably marketed in overlapping trade channels to the same classes of consumers.

Accordingly, the TTAB concluded that there was a likelihood of confusion, and affirmed the refusal to register the applied-for DEATH FROM ABOVE mark for hunting stands as a variant of the registered HUNT FROM ABOVE mark.

Thomas P. Howard, LLC is experienced in trademarks nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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