IP Law Daily, TRADEMARK—TTAB: Refusal to register ACRON for landscaping and horticultural services reversed, (Aug 22, 2022)

By Linda Panszczyk, J.D.

The evidence did not show a relatedness between the applicant’s services and the construction consultancy and planning services identified in an existing registration for the mark ACRON.

The Trademark Trial and Appeal Board has reversed the refusal to register an applicant's mark ACRON for gardening, landscape, and horticulture services, rejecting the Trademark Examining Attorney's finding a likelihood of confusion with the standard-character mark ACRON for construction consultancy and construction planning. The TTAB found that there was very little evidence in the record showing a direct relationship between the applicant’s services and the registrant’s services as most of the Examining Attorney's evidence related only to general construction/building services. The TTAB could not conclude, based on the limited evidence before it, that the services were related (In re Public Joint Stock Company Acron, August 4, 2022, Goodman, C.).

Public Joint Stock Company Acron (Applicant) sought registration on the Principal Register of the mark ACRON for “Gardening; landscape gardening; horticulture services; aerial and surface spreading of fertilizers and other agricultural chemicals; plant nursery services” in International Class 44. The Trademark Examining Attorney refused registration of Applicant’s mark on the grounds of likelihood of confusion with the standard-character mark ACRON for, in relevant part, “Construction, namely construction consultancy, construction planning” in International Class 37.

When the refusal was made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, the appeal was resumed. The TTAB reversed the refusal to register.

Similarity or dissimilarity of the services. In this instance, Applicant’s services are gardening; landscape gardening; horticulture services; aerial and surface spreading of fertilizers and other agricultural chemicals; and plant nursery services. Registrant’s relevant services are construction, namely construction consultancy and construction planning.

Applicant argued that the evidence showing the refusals does not support that the services at issue are related and that the services may seem related on a superficial level, but the services are not related when one understands their respective relative purposes and functions. On the other hand, the Examining Attorney argued that the parties’ services are similar because consumers are accustomed to seeing construction and landscaping or horticulture services offered from the same commercial source and that evidence she submitted supported her arguments.

The TTAB found that there is very little evidence in the record showing a direct relationship between Applicant’s landscape gardening services and Registrant’s construction consultancy and construction planning services. Almost all the Examining Attorney’s evidence, which involved third-party registrations as well as website evidence from third parties to show relatedness, related to general construction (building) services and not the specific construction consultancy and construction planning services identified by Registrant’s registration.

According to the Board, the two third-party registrations in the record are neither sufficiently significant in number nor are the registrations themselves compelling evidence that companies generally offer Applicant’s and Registrant’s respective services identified by a single mark. The two third-party registrations offering construction consultation and landscape gardening services and the one third-party use offering construction planning and landscape gardening services was not sufficient for the TTAB to find a relationship between the respective services. As a result, the TTAB could not conclude, based on the limited evidence before it, that the services are related.

The Examining Attorney failed to prove that Applicant’s identified services and the Class 37 services identified in the cited registration are related. Although the TTAB considered all arguments and evidence, it did not need to address the remaining DuPont factors argued by Applicant and the Examining Attorney. On this record, the Office failed to meet its burden of proving that consumers would believe that the services emanate from the same source if they were offered under the same or confusingly similar marks. As a result, the TTAB could not find likelihood of confusion and reversed the refusal to register Applicant's mark.

The case is Serial No. 79301495.

Attorneys: Camille M. Miller (Cozen O’Connor) for Public Joint Stock Co. Acron. Philip Liu for the USPTO.

Companies: Public Joint Stock Co. Acron

Cases: Trademark USPTO