Digest of Longshore v. Retail Royalty Co., No. 2014-1448 (Fed. Cir. Sept. 15, 2014) (non-precedential). On appeal from the USPTO (Trademark Trial and Appeal Board). Before Dyk, Taranto, and Chen.

Procedural posture: Applicant appealed a Trademark Trial and Appeal Board (“TTAB”) decision rejecting Applicant’s mark in favor of Opposer. CAFC affirmed.

  • Trademarks: Opposer asserted that the TTAB should refuse registration of Applicant’s mark pursuant to 15 U.S.C. § 1052(d). Opposer argued that the design in Applicant’s mark so resembled Opposer’s registered mark as to create a likelihood of consumer confusion, mistake, or deception. The TTAB concluded that the overall appearance and impression of the two marks were similar because both were silhouettes of birds with outstretched wings. Additionally, since the application and the registration listed identical goods—including shirts, pants, jackets, and footwear—the TTAB presumed that the goods associated with both marks would have the same channels of trade and classes of purchasers. Applicant also argued before the TTAB that an example of a third-party’s use of a different bird silhouette design indicated that Opposer’s mark was weak. However, the TTAB concluded that the mere existence of a similar third-party mark has minimal probative value without evidence showing the extent of its usage or exposure to the public. Reviewing the TTAB’s legal conclusion de novo and its factual findings for substantial evidence, and with reference to the factors for assessing the likelihood of confusion established In re E.I. DuPont DeNemours & Co., 476 F.2d 1357, 1361 (CCPA 1973), the CAFC affirmed the TTAB’s rejection of Applicant’s mark.