IP Law Daily, TRADEMARK—TTAB: Identical marks likely to be confused in restaurant services, live music contexts, (May 12, 2023)

By Kevin M. Finson, J.D.

The services were deemed to be related enough to cause confusion.

A restaurant operator failed to show that its applied-for mark would not be confused with an identical mark used in the music industry, the Trademark Trial and Appeal Board has held. The marks were identical and the services were related enough to make confusion likely (In re: Angel Asset Management LLC, May 10, 2023, Wolfson, F.).

Angel Asset Management, LLC (Angel) sought registration on the Principal Register for the standard character mark KOSA for use with “restaurant and bar services” in International Class 43. The Examining Attorney refused registration on the ground of likelihood of confusion with the identical standard character mark KOSA registered for use with “entertainment in the nature of music festivals and live musical performances; entertainment, namely, production of music festivals and live performances featuring music; entertainment, namely, live music concerts” in International Class 41. Angel appealed. The board considered the DuPont factors for which there was evidence of record.

Similarity of the marks. The two marks were both standard character marks and were identical. Neither party asserted that the marks were suggestive or descriptive of either set of services. This factor weighed heavily in favor of a likelihood of confusion.

Similarity of the services. The Examining Attorney presented numerous examples of third-party use of the same mark to market both restaurant and bar services and live music, along with third-party registrations showing the same mark registered for both sets of services. Angel presented 49 pairs of third-party registrations owned by different entities for the same or similar marks where each registrant owned a registration for one of the services at issue. The court did not consider 18 of these pairs, where the supposedly similar marks included additional wording or design features which distinguished them. Balancing the evidence presented by each side, the board held that the Examining Attorney had shown consumers were likely to expect live music and restaurant or bar services to emanate from the same source. This factor weighed in favor of a likelihood of confusion.

Conditions of sale. Neither the application nor the registration limited its services to any particular channels of trade or classes of consumers. The board therefore presumed that they were offered to the full range of usual consumers through the normal trade channel for such services, and there was no evidence to suggest any particularly high level of sophistication or care in purchase. These factors were neutral.

Balancing the factors, the board affirmed the refusal to register.

The Case is Serial No. 90188208.

Attorneys: Jeffrey Look for the USPTO. Kevin Grierson (Culhane Meadows PLLC) for Angel Asset Management LLC.

Companies: Angel Asset Management LLC

Cases: Trademark USPTO