Trademark beef

What foods are they serving at the US Patent and Trademark Office cafeteria?

From a Brian Rogers retweet of a tweet from Erik Pelton comes a link to this more-than-usually entertaining official USPTO Communication in connection with a federal trademark registration application.

Chicken and kale

The central issue presented: is the applicant's word mark, EAT MORE KALE, confusingly similar to the existing mark, EAT MORE CHIKIN.

In finding that the marks are confusingly similar, the PTO's examiner discusses how a word chosen in opposition to another can be calculated to invoke an association:

"Applicant . . .discusses the differences between the terms KALE and CHICKEN. The trademark attorney [examining this application] concedes that these terms are different and that they have specific definitions. But the similarities between the marks are more important than the differences. Both parties’ marks have a similar concept – encouraging those that encounter the marks to eat more of something. The marks urge action in the same way, only as to different substances and both of them are commonly consumed types of food. Given the nature of the goods and services, it is the attorney’s position that this is sufficient to find them similar. He has to be mindful of the fact that consumer confusion has been held likely even for marks that do not physically sound or look alike but that convey the same idea, stimulate the same mental reaction, or may have the same overall meaning. Proctor & Gamble Co. v. Conway, 419 F.2d 1332, 1336, 164 USPQ 301, 304 (C.C.P.A. 1970) (holding MISTER STAIN likely to be confused with MR. CLEAN on competing cleaning products); see Ralston Purina Co. v. Old Ranchers Canning Co., 199 USPQ 125 (TTAB 1978) (holding TUNA O’ THE FARM for canned chicken likely to be confused with CHICKEN OF THE SEA for canned tuna); Downtowner Corp. v. Uptowner Inns, Inc., 178 USPQ 105 (TTAB 1973) (holding UPTOWNER for motor inn and restaurant services likely to be confused with DOWNTOWNER for the same services)."

Humor aside, I find the PTO examiner's reasoning to be pretty good and the communication to be professional.

Diptych from photos by normanack (chicken) and by Tuscanycious (kale), both on Flickr.

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