New York Trademark Attorney Blog
Applicant was refused registration for two marks: (1) JAWS in standard characters and (2) JAWS DEVOUR YOUR HUNGER in standard characters. The services identified in the trademark applications were entertainment services, namely the streaming of audiovisual material via an Internet channel providing programming related to cooking. The Examining Attorney refused registration based on Section 2(d) of the Trademark Act, stating that Applicant’s marks too closely resembled Registrant’s mark JAWS for video recordings in all formats all featuring motion pictures. See In re Mr. Recipe, LLC, 118 USPQ2d 1084 (TTAB 2016) [precedential].
As in any likelihood of confusion analysis, the starting point is the similarities of the marks and the relatedness of the goods and services. Two marks will be found to be confusingly similar if there are sufficient similarities in visual appearance, sounds, meanings, and overall commercial impressions. If a consumer believes that there would be a connection between the parties, this will favor finding a likelihood of confusion. The Trademark Trial and Appeal Board (the “Board”) determined the marks weighed in favor of finding likelihood of confusion.
With regard to the services, the Applicant identifies streaming of audiovisual material, but restricts the subject matter to cooking. The Registrant’s goods for motion pictures do not contain a restriction. Therefore, the subject matter of Registrant’s movies could feature cooking. The Examining Attorney introduced 41 third-party registrations offering both video recordings and streaming video services. Since the registrations are based on use in commerce, they carry some probative weight for demonstrating that the goods and services may emanate from the same source. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786 (TTAB 1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). Applicant failed to submit evidence to contradict this point. The Applicant should have introduced evidence pertaining to the number of registrations for motion pictures and the number for services for streaming audiovisual material to demonstrate that there was a minimal overlap.