TMEP 1207.01(c): Design Marks

October 2017 Edition of the TMEP

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1207.01(c)    Design Marks

When the marks at issue are both design marks, the similarity of the marks must be decided primarily on the basis of visual similarity. E.g., In re Vienna Sausage Mfg. Co., 16 USPQ2d 2044, 2047 (TTAB 1990). In this situation, consideration must be given to the fact that the marks usually will not be viewed side-by-side in the marketplace and a purchaser’s recollection of design marks is often of a general, rather than specific, nature; thus the marks may be confusingly similar despite differences between them. See, e.g., In re United Serv. Distribs., Inc., 229 USPQ 237 (TTAB 1986) (holding mark consisting of a design featuring silhouettes of a man and woman, used in connection with distributorship services in the field of health and beauty aids, and mark consisting of a design featuring silhouettes of a man and woman, used in connection with skin cream, likely to cause confusion); In re Steury Corp., 189 USPQ 353 (TTAB 1975) (holding mark consisting of three generally horizontal bars, for, inter alia, boats, campers, and travel trailers, and mark consisting of two generally horizontal bars, for, inter alia, boats, campers, and travel trailers, likely to cause confusion); Matsushita Elec. Indus. Co. v. Sanders Assocs., Inc., 177 USPQ 720 (TTAB 1973) (holding mark consisting of a triangular arrow design within a square border, for various items of electrical and electronic equipment, and mark consisting of a triangular arrow design, for various items of electrical and electronic equipment, likely to cause confusion); cf. Red Carpet Corp. v. Johnstown Am. Enters., 7 USPQ2d 1404 (TTAB 1988) (holding mark consisting of a highly stylized house design for use in connection with real estate property management, and mark consisting of a highly stylized house design for use in connection with real estate brokerage services, not likely to cause confusion); Ocean Spray Cranberries, Inc. v. Ocean Garden Prods., Inc., 223 USPQ 1027 (TTAB 1984) (holding mark consisting of a circle containing three curved lines with rounded ends, for seafood, and mark consisting of a stylized breaking wave within an oval, for various food items including juices and fruits, not likely to cause confusion).