The USPTO refused registration of the mark PLUM for various advisory and consulting services, including mortgage brokerage, finding the mark likely to cause confusion with the registered marks BLACKPLUM for financial advice and consultancy services, and PLUMDOG for mortgage brokerage. Applicant's services overlap with those of the cited registrations, but what about the marks? How do you think this appeal came out? In re Plum, Inc., Serial No. 86572736 (February 16, 2017) [not precedential].
Of course, the Board presumed that the overlapping services are rendered in the same channels of trade to the same classes of consumers. And although the involved services encompass sophisticated investors, the Section 2(d) determination must be based upon "the least sophisticated potential purchasers." See Stone Lion Capital Partners, 110 USPQ2d at 1163.
As to the cited mark BLACKPLUM, the evidence established that a "black plum" is the common name of a species of plum found in the United States. "Thus, the shared meaning of PLUM and BLACKPLUM engenders a very similar commercial impression." In contrast, the word PLUMDOG has "a very different connotation and commercial impression."
Unlike with BLACKPLUM, the record includes no evidence that PLUMDOG has a particular meaning. Consumers most likely would view the “plum” portion of this mark as a modifier of "dog,' such that, considered in its entirety, the PLUMDOG mark creates a commercial impression of a kind of dog. We find that this differs significantly from the impression created by PLUM alone, even for the same services. *** Overall, we find that PLUM and PLUMDOG differ, especially in connotation and commercial impression.
Applicant pointed to various third-party uses of "plum," but only four were in the relevant field. This limited evidence was insufficient to support applicant's argument that "the word ‘plum’ is not distinctive within the field of finance."
The Board therefore reversed the refusal based on the PLUMDOG registration, but affirmed the refusal in view of the BLACKPLUM mark.