Sometimes there are legal decisions that test reality. A recent decision from the Trademark Trial and Appeal Board (the “TTAB”) found that marks using designs of certain quadrupeds are confusingly similar despite the fact that animals depicted are completely different species. In Abercrombie & Fitch Trading Co. v. Isabella Elisabeth Shnittger, Opposition No. 91218738 (August 12, 2019), the TTAB compared the bull moose design marks of opposer Abercrombie & Fitch against that mark of applicant Isabella Schnittger showing a bugling bull elk which also included the word mark “RED DEAR”:
The TTAB found that the Abercrombie’s Moose trademarks, while not famous, are nonetheless “’renowned’ in the clothing market, and commercially quite strong.” Applicant’s goods and opposer’s goods — i.e., clothing items — are essentially identical and therefore would be present together in the same channels of trade. Applicant conceded that both her mark and Abercrombie’s marks depict four-legged animals with antlers and are depicted in full-bodied profiles. However, the judge acknowledged that there are differences:
To be sure, there are also differences between the animals, as their antlers are not the same and their heads are shaped differently and in somewhat different positions. The mouth in Applicant’s deer is open, perhaps because it is calling out or consuming something
Nonetheless, the judge concluded that clothing consumers would likely be confused by the marks because “the recollection of the average purchaser … normally retains a general rather than a specific impression.” In other words, the “average purchaser,” whoever that may be, somehow cannot to see the difference between a moose (Abercrombie’s mark) and an elk (Schnittger’s mark). Given the “renowned” nature of Abercrombie’s marks and the identity of the parties goods, the overall general visual impression of the marks, there was sufficient basis for a likelihood of confusion. Accordingly, the TTAB sustained Abercrombie’s opposition.
Perhaps the judge spends too much time in the urban swamp environs of Washington D.C. and should get out to the forests and hills. But in fairness to the judge, the applicant may be confused about the nature of her own mark. The word mark “RED DEAR,” in Ms. Schnittger’s mark, is an apparent play on the homonym “deer,” but her design is the silhouette of an elk. Even though different critters are, well, different, it would appear that the average person may get confused after all between image of a moose and an elk, or a deer for that matter.
In any case, the take-away here is that businesses will need to make sure that the “general impression” of their visual design marks are sufficiently different from design marks of others in their field to avoid confusion, and not rely on any specific details in their marks that may be different.