To find a likelihood of confusion, the respective goods and services need not be identical or even competitive. But there still must be evidence in the record that the goods and services are related. Or that they are marketed in a manner that could give rise to the mistaken belief that they emanate from the same source.

SFERA Is Spanish; SFERRA Is a Surname; But Their Goods Are Not Related

The TTAB recently dismissed an opposition because it found that the parties' respective goods were not related. In Sferra Fine Linens, LLC v. Sfera Joven S.A., Opp. No. 91267498 (TTAB May 18, 2023), Sferra opposed the registration of the stylized SFERA mark for perfumery and cosmetics (Class 3), leather handbags and wallets (Class 18), and clothing (Class 25), in view of its registered mark SFERRA for table linen, bed sheets, lap robes, bath towels, and the like (Class 24).

The TTAB noted that “sfera” is Spanish for “sphere,” while SFERRA is Opposer's founder's surname.

We find this difference outweighed, however, by the marks' similarities in appearance and sound. Moreover, Spanish speaking consumers who merely hear the marks (especially if they are not pronounced by Spanish speakers) rather than seeing them may not perceive any difference in meaning. Moreover, we must also be concerned with United States consumers who do not speak Spanish (as well as Spanish speakers who do not “stop and translate” Applicant's mark), and these relevant consumers may not perceive any difference between the marks in meaning or commercial impression.

But Opposer's cited evidence failed to establish that the goods are related. And Opposer failed to introduce any evidence of use prior to Applicant's priority (filing) date with respect to bathrobes, scarves, diffusers and candles.

[T]he goods for which Opposer has not established prior use are irrelevant to its likelihood of confusion claim.

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            Furthermore, Opposer's argument that the goods are “presumed to travel in the same channels of trade to the same class of purchasers,” 67 TTABVUE 24, is misplaced. The presumption Opposer cites applies when the identified goods are identical, but here, as explained above, there is no evidence that the parties' goods are even related. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); Am. Lebanese Syrian Associated Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011). While we may presume that the parties' goods will be “offered in all channels of trade which would be normal therefor,” In re Jump Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006), Opposer has not provided any evidence regarding the “normal” channels of trade for Applicant's identified goods in the United States.

The TTAB also noted that where Opposer is relying primarily on its registration rights, the “least sophisticated potential purchasers” would be those for the goods identified in the pleaded registration.

Because the goods are not related, the TTAB concluded that confusion was unlikely notwithstanding that the marks are similar. See Kellogg Co. v. Pack'em Enters. Inc., 951 F.2d 330, 21 USPQ2d 1142, 1145 (Fed. Cir. 1991) (“We know of no reason why, in a particular case, a single duPont factor may not be dispositive.”); Local Trademarks Inc. v. The Handy Boys Inc., 16 USPQ2d 1156, 1158 (TTAB 1990) (“even though opposer's services and applicant's product are or can be marketed to the same class of customers, naming plumbing contractors, these services and goods are so different that confusion is not likely even if they are marketed under the same mark”); Quartz Radiation Corp. v. Comm/Scope Co., 1 USPQ2d 1668, 1669-70 (TTAB 1986) (opposition dismissed because the goods were “quite different,” notwithstanding that the marks were the same).

The attorneys at Thomas P. Howard, LLC are experienced in trademarks nationwide including in Colorado.