IP Law Daily, TRADEMARK—Fed. Cir.: Dismissal of opposition affirmed in apparel ‘TT’ mark dispute, (Sep 4, 2024)

By Kevin M. Finson

The TTAB properly found that there was no likelihood of confusion between interlocking “TT” marks for related goods because the marks were not similar.

The Trademark Trial and Appeal Board did not err in dismissing an opposition to registration of a mark consisting of inverted, interlocking “T” shapes for clothing on the ground of likelihood of confusion with opposer’s registered mark consisting of inverted, interlocking “T”s in a different shape, the U.S. Court of Appeals for the Federal Circuit has held. Substantial evidence supported the Board’s finding that the applicant’s mark created the impression of a rectangular geometric design that was not similar to the opposer’s mark (Tribe Of Two, LLC v. Vidal, No. 23-1193 (Fed. Cir. Sept. 3, 2024)).

Eritaj Design Corporation (Eritaj) applied to register a mark consisted of interlocking stylized T shapes for use with several varieties of clothing in International Class 25. Tribe of Two, LLC (Tribe) filed an opposition on the ground of likelihood of confusion with its interlocking stylized T marks which were registered for use with purses, wallets, handbags, and related goods in International Class 18. The Trademark Trial and Appeal Board (TTAB) dismissed the opposition. Tribe appealed, and the Director of the USPTO intervened to defend the Board’s decision.

Likelihood of confusion. Tribe argued that the Board erred in its analysis of the DuPont factors, specifically in finding the marks dissimilar. According to Tribe, the Board should have found the literal elements (letters “TT”) of Eritaj’s mark to be dominant, thus looking and sounding the same as Tribe’s. Tribe also contended that any doubt as to whether confusion is likely should have been resolved in favor of Tribe, as the senior user.

The Federal Circuit found that the Board was within its rights as factfinder to determine that the letters “TT”, although discernible in Eritaj’s mark, did not form the dominant impression. Substantial evidence supported the Board’s finding that Eritaj’s mark’s inversion of the letters T, the doubled horizontal lines, and the use of negative space created the impression of a rectangular geometric design rather than Tribe’s interlocking T mark, resembling the capital letter “I.”

The court also noted that while Tribe was correct that doubts about likelihood of confusion should be resolved in favor of the senior user, neither the Board nor the court saw any doubt in the analysis.

The court affirmed the board’s dismissal of the opposition.

The Case is No. 23-1193.

Judge: Prost, S.

Attorneys: Steven E. Klein (Davis Wright Tremaine LLP) for Tribe of Two, LLC. Christina J. Hieber, U.S. Patent and Trademark Office, for Katherine K. Vidal.

Companies: Tribe of Two, LLC; Eritaj Design Corporation

Cases: Trademark FedCirNews USPTO