Where the identified goods or services are legally identical in part, “the degree of similarity necessary to support a conclusion of likely confusion declines.” Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); see also In re Aquamar, Inc., 115 USPQ2d 1122, 1126 (TTAB 2015).

The TTAB recently affirmed a refusal to register BOSSCOIN for various cryptocurrency-related services, in view of the registered mark BOSCOIN for various virtual currency-related services. In re James Lindsay, Serial No. 90793706 (TTAB Jan. 8, 2024).

The evidence of record showed that virtual currencies are subset of digital currencies, such that “virtual currency” is a broader term that encompasses “cryptocurrency”—so, the TTAB found Applicant's and Registrant's services to be “legally identical, in part,” because of this overlap.

Furthermore, because there were no limitations on trade channels or consumers, the TTAB presumed that those services are offered in the same trade channels to the same relevant purchasers. See Hunter Indus., Inc. v. Toro Co., 110 USPQ2d 1651, 1661 (TTAB 2014); Am. Lebanese Syrian Associated Charities, Inc. v. Child Health Rsch. Inst., 101 USPQ2d 1022, 1028 (TTAB 2011); see also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1906 (Fed. Cir. 2012); In re RiseSmart, Inc., 104 USPQ2d 1931, 1935 (TTAB 2012).

          In comparing the marks, BOSCOIN and BOSSCOIN, it is readily apparent that they are very similar “in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting DuPont, 177 USPQ at 567). The only difference between the marks is Applicant's addition of the second “s” in Applicant's mark – which is not really noticeable visually and unlikely to alter the manner the otherwise identical manner in which the marks are pronounced or understood.

The TTAB found that the difference between the “BOS”- and BOSS”- was one that “may go easily unnoticed by consumers.”

Finding confusion was likely between these marks that may be used in connection with legally identical services offered in the same trade channels, the TTAB affirmed the refusal to register.

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