The Board affirmed a refusal to register the mark shown below left [INVESTMENTS disclaimed], for various financial and brokerage services, finding the mark likely to cause confusion with the registered mark shown below left, for overlapping financial services. Applicant argued that the involved consumers would be sophisticated and would exercise care in their purchasing decisions, but that argument ran into a Stone Lion. In re Cumberland Valley Financial Corp., Serial No. 86827085 (April 5, 2017) [not precedential] (Opinion by Judge Hightower).
Both applicant's and registrant's services included "asset acquisition and management of investment property." There were no limitations in the application and and cited registration as to classes of consumers and channels of trade, and so the Board presumed that they are the same as to the overlapping services.
Moreover, because the marks are used with services that are identical in part, the degree of similarity necessary to support a likelihood of confusion declines.
The Board found that the letters "CV" dominate applicant's mark. The wording in a word-plus-design mark is usually accorded greater weight because the literal portion is the part voiced by consumers when ordering the services. In addition, CV is the leading term in applicant's mark and thus more likely to be noticed. Although the tree design and the word "investments" distinguish the mark somewhat from the cited mark, this has less significance in creating the commercial impression of the mark.
The Board also noted that "marks involving letter combinations can be more susceptible to confusion than word marks." The fact that the letter portions CV may have been derived from the names of the applicant and respondent was of no consequence, absent evidence that consumers are aware of the derivation.
The Board concluded that the first du Pont factor supported a finding of likely confusion.
As to applicant's contention regarding the sophistication of its customers, the Board pointed to the CAFC's decision in Stone Lion Capital Partners, LP v. Lion Capital LLP, 110 SPQ2d 1157 (Fed. Cir. 2014) [TTABlogged here], wherein the court found that "the Board properly considered all potential investors for the recited services, including ordinary consumers seeking to invest in services with no minimum investment requirement." In short, the Board must base its decision on the least sophisticated potential purchasers. Such ordinary consumers will exercise care but are not immune to source confusion. Thus the fourth du Pont factor weighed in favor of a finding of likelihood of confusion.
The Board concluded that the first, second, third, and fourth du Pont factors favored a likelihood of confusion and none weighed against it. Therefore, the Board affirmed the refusal.