The Board affirmed a refusal to register the mark COLDTOUCH for "pillows, bed toppers" and "mattress pads," finding a likelihood of confusion with the registered mark COOL TOUCH (in standard character form) for "mattresses." Applicant conceded that the involved goods are similar, but contended that "cold" and "cool" have different meanings. Would you have appealed? In re Perry Textiles Inc., Serial No. 86360156 (December 14, 2015) [not precedential].
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Third-party use-based registrations covering both applicant's and registrant's goods convinced the Board that the involved goods are related and complimentary in nature.
As to t he marks, applicant maintained that its mark "creates a commercial impression of its products being refrigerated or actually cold to the touch" whereas COOL TOUCH "creates a commercial impression of merely being cold when one feels the product." Moreover, "cool" has other meanings, like "fashionable, trendy or chic," and the words "cold" and "cool" differ in spelling and sound. Furthermore, "touch" is descriptive and less important in the Section 2(d) analysis.
The Board was unconvinced. Both "cold" and "cool" begin with a hard "c" and are very close in meaning.
The word "cool" is defined as "cold (but pleasant)." The slight difference in meaning is minimized by the subsequent, identical noun TOUCH. When considered as a whole, both marks imply that their products are cold or "cold (but pleasant)" to the touch. This is especially true, given the nature of both Applicant’s and Registrant’s goods.
The Board concluded that, although the marks have some differences in sight and sound, "there are striking similarities in connotation, and, ultimately, overall commercial impression."
The Board therefore found the marks confusingly similar and it affirmed the refusal to register.