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ARTICLE · 26 JUNE 2020

TTABlog Test: Are These Two "IMMORTAL" Marks For Wine Confusable?

Wolf, Greenfield & Sacks, P.C.
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The USPTO refused to register the mark IMMORTAL & Design, shown below, finding a likelihood of confusion with the registered mark THE IMMORTAL ZIN [ZIN disclaimed], both for wine.

United StatesIntellectual Property
John L. Welch
John L. Welch
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The USPTO refused to register the mark IMMORTAL & Design, shown below, finding a likelihood of confusion with the registered mark THE IMMORTAL ZIN [ZIN disclaimed], both for wine. Applicant argued that the examining attorney "erred by finding that the allegedly dominant portion of Applicant's Mark is the word 'IMMORTAL,' not the jellyfish." How do you think this came out? Hidden Ridge Vineyard, LLC, Serial No. 87868652 (June 24, 2020)[not precedential] (Opinion by Judge Christopher Larkin).

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In its 45-page opinion, the Board informatively marched through the DuPont factors. Since the involved goods are identical, a lesser degree of similarity between the marks is needed to support a finding of likely confusion. Moreover, the Board must presume that the goods travel through the same, normal channels of trade to same classes of consumers. With no limitations in the application or cited registration, the Board must consider the perception of the least sophisticated

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