The marks: The Board noted that both designs comprise fanciful paw prints with the metacarpal pad replaced by a peace symbol. Both marks "conjure up a sentiment of integration involving animals and peace." The wording in Applicant's mark, PAWS4PEACE, articulates "the same or a very similar expression created by the registered design mark." Therefore the wording does not outweigh the similarities between the design portion of these two marks.
The record evidence did not show that "paw and peace symbol" designs are commonplace. Applicant pointed to one third-party registration for a similar design for clothing, but that dog wouldn't hunt: there was no evidence as to whether that mark is in use, or whether the consuming public has any familiarity with it.
As to the registered word mark, the wording in the applied-for mark is essentially equivalent. The inclusion of the design in Applicant's mark has lessened significance since it reinforces the commercial impression of the literal portion.
In sum, the Board found applicant's mark to be "very similar" to the two cited marks.
The goods: Internet evidence showed that pet clothing and human clothing may emanate from a common source, and further that pet owners sometimes purchase pet clothing to match their own.
The Board found it likely that "consumers, upon encountering both marks being used on the respective goods, would mistakenly believe that the pet and human clothing are intended to be complementary by matching and, therefore, originate from the same source."
Classes of customers: The Board perceptively pointed out that pet owners, not pets, purchase pet clothing, and therefore there is clearly an overlap in customers for human and pet apparel.
And so the Board affirmed the refusal to register.
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Text Copyright John L. Welch 2013.
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