In a decision deserving of one clap at most, the Board affirmed a refusal to register the mark shown immediately below - comprising a two-dimensional design of a bottle that includes the words OVATION FOR MEN - for "colognes and perfumes" [FOR MEN disclaimed], finding it confusingly similar to the mark OVATION, registered by two different owners, one registration for hair care products and the other for cosmetics. In re Shawn Crenshaw, Inc., Serial No. 86328394 (April 5, 2017) [not precedential] (Opinion by Judge Lynch).
The Marks: The Board found that the applied-for mark is dominated by the word OVATION. Consumers are likely to perceive the ring-shaped design as a depiction of the cologne or perfume bottle. In a word-plus-design mark, greater weight is typically given to the literal portion of the mark. The Board noted that the term FOR MEN not only appears in smaller font than OVATION, but is disclaimed.
The Board therefore found that the involved marks are similar in appearance and sound. Moreover, the shared word OVATION contributes to a strong similarity in connotation and commercial impression.
And so he Board concluded that the applied-for mark and the cited marks are very similar.
The Goods: Examining Attorney Roger T. McDorman submitted voluminous demonstrating the relatedness of applicant's goods and those of the cited registrations, including third-party web pages and registrations. Applicant argued that its goods are "high-end" and so consumers would exercise care in their purchases, but the Board pointed out that there is no such restriction in the subject application. Similarly, applicant's argument that consumers would not confuse the goods was irrelevant, since the issue is source confusion, not product confusion.
Finally, applicant contended that, because the two cited registrations can co-exist on the Register, registration of applicant's mark would not present any greater likelihood of confusion. The Board was unmoved. Each case must be decided on its own facts, and the allowance of prior registrations does not bind the Board. The record here provides "compelling support for likely confusion between Applicant's mark and these marks."
The Board therefore affirmed the refusal.