The U.S. Court of Appeals for the Federal Circuit affirmed the Trademark Trial and Appeal Board’s (TTAB) refusal to register the mark ML for skin care products, agreeing that there was a likelihood of confusion with the registered mark, ML MARK LEES, for essentially the same products. In re Mighty Leaf Tea, Case No. 09-1497 (Fed. Cir., Apr. 13, 2010) (Newman, J.).

Mighty Leaf Tea applied for registration of the mark ML in standard characters for personal care products and skin care preparations but encountered the stylized mark, ML MARK LEES for a variety of skin care products, including some products identical to the goods applied for by Mighty Leaf. The examining attorney refused registration, and Mighty Leaf appealed to the TTAB. Mighty Leaf argued that confusion was unlikely because its application was for a standard character mark, rather than a stylized version; the additional terms “MARK LEES” sufficiently distinguished the cited registration: and ML was a weak mark because several third-party registrations and pending applications also included the letters “ML” for personal care or skin care products. The TTAB was not persuaded and found confusion likely. Mighty Leaf appealed, arguing the TTAB failed to give sufficient weight to the evidence of third-party use and that the two marks were distinguishable.

The Federal Circuit, in affirming the TTAB, noted that “the occurrence of two letters in longer words or strings does not of itself establish a ‘common element’” between the third-party marks because “there was no evidence that the two letters ‘ML’ had any recognized meaning or significance within the longer strings.” The Court further found that the additional term MARK LEES did not necessarily eliminate a likelihood of confusion because “ML is likely to be perceived as a shortened version of ML MARK LEES when used on same or closely related skin care products” and the initials comprised a dominant feature of the cited registration. The Court also agreed with the TTAB that the stylization of the cited registration did not distinguish it from an application for ML in standard characters, because standard character marks are not limited to any particular style and thus could encompass the style of the cited registration. Mighty Leaf’s argument on this point was hobbled by the fact that the specimen it submitted to the U.S. Patent and Trademark Office (USPTO) as evidence of use in commerce showed a stylized version of ML that was fairly similar to the cited registration.

The Court also noted that other DuPont likelihood of confusion factors supported the TTAB’s decision and agreed (with the TTAB) that “customer confusion is likely between ML and ML MARK LEES when used on nearly identical goods.”