TTAB Finds TROPICAL ESCAPE for Soap and Air Fresheners Not Confusable

Despite the identity of the marks and the relatedness of the goods, the Board reversed a Section 2(d) refusal to register TROPICAL ESCAPE for "antibacterial soap; bar soap; bath soaps; deodorant soap; liquid soaps; body washes," finding it not likely to cause confusion vis-a-vis the identical mark for room fragrances and air freshening preparations; room perfume sprays, household and room deodorants, and odor neutralizers. Third-party registrations and uses, along with the 13th duPont factor, allowed this Applicant to escape the Tropic of Unregistrability. In re Pure & Natural Company, Serial No. 77433737 (May 13, 2013) [not precedential].

Applicant maintained that TROPICAL ESCAPE is a very weak mark in view of numerous third-party marks used on similar goods. It submitted 30 third-party registrations for marks that include the term TROPICAL or ESCAPE, which marks are used on personal care products, fragrances, scented sprays, and the like. Applicant also made of record 11 third-party Internet printouts showing use of TROPICAL ESCAPE on a variety air fresheners and scented candles.

The Board, however, saw no reason to decide whether TROPICAL ESCAPE is a weak mark for the relevant goods. Instead it found that "the frequent registration of the terms TROPICAL and/or ESCAPE for their suggestive meaning on soaps and detergents as well as on household fragrances and scented sprays together with the evidence of third-party use of TROPICAL ESCAPE on various types of scented products suggests that consumers are able to distinguish the source of these distinctly different scented products bearing similar or even identical names."

As to the relatedness of the goods, the Examining Attorney made of record 9 third-party registrations (including one owned by the applicant), demonstrating that both applicant’s and registrant’s types of goods are offered under a single mark by third parties as well as by Applicant itself. Consequently, this du Pont factor favored a finding of likely confusion.

Under the thirteenth du Pont factor, the Board may consider any other probative facts. Here, Applicant claimed ownership of a prior registration for the identical mark TROPICAL ESCAPE for "laundry detergents; laundry soap; fabric softeners.”

Thus, we are presented with the unusual situation wherein an applicant's existing registration for the same mark for related goods has coexisted with the cited registration for a number of years. When we consider this fact under the thirteenth du Pont factor, we find in this case that this factor weighs heavily in applicant’s favor against a finding of a likelihood of confusion.

Balancing the relevant du Pont factors, the Board found that there is no likelihood of confusion.

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Text Copyright John L. Welch 2013.

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