The Board first found the two marks to be highly similar in sight, sound, connotation, and commercial impression. Of course when the marks are nearly identical, a lesser degree of similarity between the goods is necessary to support a finding of likely confusion.
Third-party registrations, including some owned by Gibson, and Internet webpages demonstrated that guitars and amplifiers are complementary and related.
Neither the application nor the cited registration contains any limitation on channels of trade or classes of consumers, and so the Board assumed that the goods travel in the same, normal channels to the same, normal classes of customers.
Gibson argued that its goods are expensive (see article here) and the purchasers sophisticated, but the Board pointed out that there are no restrictions on price in Gibson's identification of goods. The Board must presume that both the guitars identified in the application and the amplifiers of the cited registration would be sold at all usual prices levels and ma include relatively inexpensive products. Moreover, the Board noted, when the marks involved are nearly identical, even careful, sophisticated consumers may not notice the differences in the marks, and even if they do, they will see the marks as variations of each other, pointing to a single source.
Finally, Gibson lamely argued that the cited mark is not famous, while its own goods sold under the FIREBIRD mark have garnered "a significant level of fame." The Board noted that this argument raised the issue of reverse confusion, which is no less a problem. In any event, any doubt as to confusion must be resolved in favor of the senior user.
And so the Board affirmed the refusal to register.
TTABlog comment: Well, what do you think?
Text Copyright John L. Welch 2012.
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