Goods/Services: The Board has often recognized that confusion is likely from the use of the same or similar marks for goods and for services involving those goods. See, e.g., In re
Since the goods and services in the application and pleaded registration are unrestricted, the Board must assume that the goods and services are offered to ordinary purchasers who exercise no more than ordinary care in their purchasing decisions.
Strength of Opposer's Mark: Opposer claimed that its marks are famous, but its evidence fell short. It did not provide sales figures under each mark, and there was no evidence regarding commercial impressions, social media following, or third-party mentions.
Applicant
Seventeen examples of third-party use of "WIZ" in connection with electronic goods and services tended to show the commercial weakness of "WIZ."
Overall, we find both some conceptual and commercial weakness for the word WIZ in the mark(s) THE WIZ (and NOBODY BEATS THE WIZ) in connection with retail store services in the field of consumer electronics and accessories. We accord the word WIZ in Opposer's THE WIZ mark a somewhat restricted scope of protection
The Marks: The Board found that
The Board concluded that applicant's mark engenders a different overall commercial impression than opposer's mark, sufficient to avoid likely confusion. "In connection with Applicant's goods, WIZ is modified by
We are cognizant of Opposer's argument that if Opposer were to sell the
Conclusion: Balancing the relevant DuPont factors,the Board found "the differences between the marks sufficient to avoid likely confusion despite the relatedness of the goods and services, and trade channels, in particular given the differences in overall commercial impression." And so, it dismissed the opposition.
TTABlogger comment: Well, somebody beat the Wiz!
The TTABlog
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr
MA 02210
Tel: 617646 8000
Fax: 617646 8646
E-mail: www.wolfgreenfield.com
URL: www.wolfgreenfield.com
© Mondaq Ltd, 2021 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com, source