Thursday, April 13, 2023

CAFC does trademarks

The outcome

Charger Ventures LLC appeals from a Trademark Trial and Appeal Board decision that denied registration of Charger’s trademark SPARK LIVING on grounds of likelihood of confusion with an earlier registered trademark, SPARK. On appeal, Charger challenges the Board’s likelihood of confusion determination. Because the Board’s determination is supported by substantial evidence, we affirm.

Some text

Third, Charger argues that the Board’s finding on the class of purchasers was improper because the consumers of Charger’s services are substantially different from registrant’s services. Appellant’s Br. 28–29. Charger argues that “[p]eople looking to buy a home or a condominium are likely to take their time and make an educated decision before entering into these purchases because of the important impact these decisions can have on their lives . . .”. Id. at 29. The Director asserts that Charger fails to identify where, in the record, it has demonstrated that residential property owners are distinct consumers from commercial owners. Appellee’s Br. 21. Indeed, the Director argues that “people who seek commercial real estate services live somewhere.” Id. (emphasis in original). As the Board explained, careful or sophisticated consumers are not immune from source confusion. J.A. 12 (citing In re Rsch. and Trading Corp., 793 F.2d at 1279 (“That the relevant class of buyers may exercise care does not necessarily impose on that class the responsibility of distinguishing between similar trademarks for similar goods.”)). Paired with the potential overlap of consumers, substantial evidence supports the Board’s determination on this factor. Fourth, as for the factor regarding the number and nature of similar marks in use on similar goods, Charger reiterates its evidence of third-party use showing variations of the term SPARK in trademarks as evidence of weakness. Charger argues that weakness of the mark “is paramount in the likelihood of confusion analysis.” Appellant’s Br. 20. The Director argues that all marks on the principal register are presumed valid and distinctive and that even weak marks are entitled to protection. Appellee’s Br. 23 (citing Conde Nast Publ’ns, Inc. v. Miss Quality, Inc., 507 F.2d 1404, 1406 (CCPA 1975)).


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