Well-known women’s clothing retailer Anthropologie recently prevailed in a TTAB opposition involving the Happy Green Company’s application to register the mark anthō for goods including bath salts, bath soaps, skin care products, cosmetics, and fragrances. To support its likelihood of confusion claims, Anthropologie relied on its registrations for ANTHROPOLOGIE for retail department store services, clothing, handbags, and accessories, and ANTHRO for customer loyalty program services. Anthropologie submitted evidence that its retail services include the sale of products identical to those listed in the Happy Green Company’s identification of goods, including bath salts, soaps, moisturizers, and perfumes. (Because Anthropologie does not sell ANTHROPOLOGIE-branded beauty products, it could not establish trademark rights in connection with such products themselves.) Anthropologie also submitted evidence that the term ANTHRO is a commonly-used nickname for Anthropologie, as well as the name of its customer loyalty program.
The Board found that Anthropologie failed to establish rights in the mark ANTHRO for any goods or services beyond its customer loyalty program, noting that the mere use by the public of a term to refer to a company or its products and services does not mean the company has obtained rights to exclude others from using the same term. The Board focused its likelihood of confusion analysis on the comparison between ANTHRO and anthō, finding the marks to be highly similar. The Board also found that Anthropologie’s customer loyalty program services (rendered in conjunction with its retail services featuring beauty products) are similar to the Happy Green Company’s various beauty products, noting that it is well-settled that confusion may be likely to occur from the use of the same or similar marks for goods, on the one hand, and for services involving those goods, on the other.
The Board therefore refused to register the Happy Green Company’s anthō mark, concluding that purchasers familiar with the ANTHRO mark and services would be likely to mistakenly believe, upon encountering the anthō mark for beauty products, that the respective goods and services originate from the same entity.
The case is Anthropologie, Inc. and Urban Outfitters Wholesale, Inc. v. Happy Green Company LLC, Opp. No. 91204412 (Oct. 21, 2014)