IP Law Daily, TRADEMARK—TTAB: Race car driver’s stylized ‘47’ mark likely to be confused with existing registrations, (Oct 7, 2024)

By Kevin M. Finson

A mark was found to be highly similar in appearance and sound to existing registrations despite the proposed mark’s stylization.

A race car driver’s proposed mark was likely to be confused with existing registrations, the Trademark Trial and Appeal Board has held. The primary element of the mark was the number 47, which was already in use with identical goods (In re Mick Schumacher, No. 79324040 (T.T.A.B. Sept. 27, 2024)).

Mick Schumacher, a race car driver, sought registration on the Principal Register for a wide variety of goods across twelve International Classes for a mark consisting of a shaded circle inside of which was the number “47”, with the silhouette of a man’s head wearing a baseball cap superimposed over the number. The Examining Attorney refused registration as to all of the Class 25 goods and some goods in Classes 18 and 24 on the ground that the proposed mark was likely to cause confusion with five registered marks, including 47, FORTY SEVEN, and variations thereof. Schumacher appealed.

Goods, channels of trade, consumers. It was undisputed that the goods were in-part identical or legally identical as to each class at issue. Accordingly, the board presumed that the channels of trade and classes of consumers overlapped. These factors weighed heavily in favor of a likelihood of confusion.

Strength of the registered marks. Schumacher argued that extensive third-party registration and use of 47-formative marks showed the term was weak. The board found, however, that Schumacher had not introduced evidence of such “extensive” use but had shown only six registrations and limited evidence of use by one party. The board also noted that the five registrations raised by the Examining Attorney shared common ownership. The board held that without sufficient evidence in the record of either conceptual or commercial weakness these factors were neutral.

Similarity of marks. The board found that the meaning behind the marks was different, as Schumacher argued. Schumacher adopted the interpretation of his fans that read the mark as “for 7,” with 7 referring to his father, Michael Schumacher, a famous race car driver, while at least two of the registered marks used the numbers as an abbreviation of a year. However, because the marks would be verbalized identically and the shared textual element “47” was the dominant element of the marks, the marks were more similar than dissimilar. This factor weighed in favor of a likelihood of confusion.

The court affirmed the refusal to register as to each disputed category of goods.

The Case is Serial No. 79324040.

Judge: Adlin, M.

Attorneys: Paul G. Novak (Orbit IP, LLP) for Mick Schumacher. Jared M. Mason for the USPTO.

Cases: Trademark USPTO