WYHA? "AL COURA" and "EL KOURA" Confusingly Similar for Olive Oil, Says TTAB

The PTO refused to register the mark AL COURA for "canned processed olives, olive oil, olive paste, processed olives, tahini, [and] grape leaves" on two grounds. First, Applicant Gateway Foods failed to comply with Examining Attorney Anne Gustason's requirement that it furnish a translation of the mark. Second, she found the applied-for mark likely to cause confusion with the registered mark EL KOURA for "extra virgin olive oil." Would you have appealed? In re Gateway Foods, Inc., Serial No. 77930551 (October 2, 2012) [not precedential].

An application to register a mark that includes a non-English term must include an English translation of that term. See Trademark Rule 2.32(a)(9). Gateway did not respond to the Examining Attorney's requirement, and did not address the issue in its appeal brief. The Board affirmed the requirement.

As to likelihood of confusion, Gateway's "olive oil" encompasses the registration's "extra virgin olive oil," and therefore the goods are (in part) legally identical for purposes of the du Pont analysis. As a result, the Board must presume that they travel in the same, normal channels of trade to the same, usual classes of consumers. Moreover, because olive oil is relatively inexpensive, the likelihood of confusion is increased.

The marks are "very similar" in sound. Although Applicant argued that they sound differently, the Board once again observed [Unsoundly? - ed.] that "there is no correct pronunciation of a trademark." The two marks, "whether carefully or hurriedly spoken, still sound alike." The marks look alike, and there is no evidence regarding their meaning. In sum, the marks engender similar commercial impressions.

The relevant duPont factors weigh in favor of a finding of likely confusion, and so the Board affirmed the Section 2(d) refusal.

TTABlog comment: Well. Would you have?

Text Copyright John L. Welch 2012.

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