The USPTO refused to register the mark VALLKREE for electric bicyles, electric go-karts, electric tricycles, and various parts, "all of the foregoing not for use with motorcycles and their parts therefor," finding confusion likely with the registered mark VALKYRIE for "land motor vehicles, namely, motorcycles and structural parts therefor." The marks are pretty close, but what about the goods? They seem pretty close as well. How do you think this appeal came out? In re Terumi Iwagami and Jason Troy Sanger, Serial No. 79221380 (January 29, 2021) [not precedential] (Opinion by Judge Pete W. Cataldo).
The Board first considered the strength of the cited mark. As to inherent strength, it found the mark VALKYRIE to be "mildly suggestive, and thus inherently distinctive as applied to the identified goods."
As to commercial strength, applicants argued that there was no evidence that the cited mark is famous or has acquired distinctiveness. The Board pointed out, however, that the registration owner is not a party to this appeal, and the examining attorney is under no obligation "to demonstrate exposure to or recognition of the cited mark in the marketplace." Since there was no evidence regarding the commercial strength of the cited mark, the Board considered this DuPont factor to be neutral.
The Board found the involved marks to be similar in appearance, sound, connotation, and commercial impressions. "VALLKREE could well be perceived by consumers as a novel spelling or otherwise a play on the term VALKYRIE for which there is a known meaning."
Applicants contended that the consumers of the involved goods are "well educated, and not likely to make such purchases on impulse," but there was no evidence to support that claim. [Should have asked me for a declaration - ed.]
My e-bike (Rad Mission)
As to the goods, the examining attorney submitted evidence that two companies, Honda and BMW, offer some of the goods that are identified in the involved application and also in the cited registration. The examining attorney noted that "The Court of Appeals for the Federal Circuit and Trademark Trial and Appeal Board have long recognized that the USPTO has limited resources for obtaining evidence when examining applications for registration; the practicalities of these limited resources are routinely taken into account when reviewing a trademark examining attorney's action." The Board, however, found two third-party uses and no third-party registration evidence to be insufficient to carry the USPTO's burden of proof.
Likewise, there was insufficient evidence that the same classes of consumers would encounter these goods in the same channels of trade.
The Board concluded that, although the marks are highly similar, applicants' goods are not related to the goods identified in the cited registration [or at least the USPTO did not show that they are related]. The remaining DuPont factors being neutral, the Board found that confusion is not likely and it therefore reversed the refusal.
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TTABlogger comment: If I saw an electric bicycle marketed under the same brand name as a motorcycle, I would certainly think they came from the same source. How about you?
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