Confusion

Posted by . updated on 11/11/2009
Group:

What is the difference between "appearance" and "commercial impression?"  They seem to overlap to a very large degree.

Regards,

Answers (3)
 
JSonnabend
"Commercial impression" is a strange one.  The case law ultimately recognizes that "commercial impression" is really used as a proxy for the ultimate conclusion of similarity or dissimilarity of marks resulting from a comparison of their appearance, sound, and meaning.  Thus, two marks that look strikingly similar will tend to have similar commercial impressions.

- Jeff
 
 
TataBoxInhibitor
Jeff:

Thanks.  I am in the middle of a LOC analysis and want to make the argument of "number and nature of similar marks on similar goods."  Of course it would seem that you can try and quantify the degree in which the goods and marks are similar, which are already registered over the cited mark against your application. 

First question, is there any reason to use marks in use/registered BEFORE the mark cited against your application?  Second, does this reasoning hold much weight in the USPTO?  A colleague of mine is a T.Examiner and opines that if you have over a certain amount of registrations for same/composite marks in different goods/services, totally unrelated to yours, you are in good shape.

Regards,

 
 
bcapehart
Tata - When you make the argument that your application should be allowed due to the number of registrations for the same/similar mark, you are in essence stating that the mark is fairly weak.  It can work, but you can run the risk of limiting the strength of the mark in later situations (oppositions, infringement actions, licensing, etc).  That being said, if you are responding to a LOC rejection, then having a weak mark over not having a registration at all may the best you can accomplish.

Regarding the specific questions you raised, it can make sense depending on the situation.  Also, by raising this type of argument, it is possible to effectively show that more evidence is needed for a LOC besides a similar mark.  Just be careful and not go too far.

I hope this helps.
Brent
 

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