August 20, 2022

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Federal Circuit Says No Chance of Confusion Involving Retail outlet Marks

Addressing the evaluation and application of the DuPont likelihood of confusion variables, the US Court docket of Appeals for the Federal Circuit upheld the Trademark Demo and Appeal Board’s acquiring of no likelihood of confusion among W WEIGEL’S Kitchen area NOW Open up & Style and QT KITCHENS & Style for foods and beverages bought in the parties’ respective convenience stores. QuikTrip West, Inc. v. Weigel Suppliers, Inc., Case No. 20-1304 (Fed. Cir. Jan. 7, 2021) (Lourie, J.)

 

QuikTrip West has applied its mark QT KITCHENS due to the fact 2011 in link with its combination gasoline station/usefulness stores. In 2014, Weigel Merchants began making use of W KITCHENS in connection with its similar retailers. Responding to QuickTrip’s stop-and-desist letter, Weigel two times altered its mark: very first getting rid of the “S” from “KITCHENS” to make it singular and transforming the font, and then including the text “WEIGEL’S” and “NOW OPEN” (and when all over again modifying the font). However, when Weigel filed an software to sign up its last modified mark in 2017, QuikTrip opposed.

The Board concluded that there was no probability of confusion among the two marks and dismissed the opposition. Even though many components weighed in guidance of a likelihood of confusion finding—including partly identical and associated expert services, overlapping trade channels and customers, and equivalent order conditions—the Board finally located that the discrepancies amongst the marks have been significant plenty of to outweigh those people other aspects.

On appeal, QuikTrip argued that the Board erred in 3 approaches:

  • It improperly assessed the marks’ similarities.

  • It unsuccessful to appropriately take into consideration the evidence of Weigel’s lousy religion.

  • It gave undue excess weight to the marks’ dissimilarities when weighing the DuPont likelihood of confusion variables.

The first DuPont factor considers the similarity (or dissimilarity) of the marks. QuikTrip argued that the Board gave insufficient bodyweight to the shared term “KITCHEN,” when supplying undue pounds to the other components of the marks. The Courtroom disagreed: “[i]t is not improper for the Board to establish that, ‘for rational reasons’ it really should give ‘more or a lot less bodyweight . . . to a unique characteristic of the mark’ supplied that its best conclusion pertaining to the probability of confusion ‘rests on [a] consideration of the marks in their entireties.’” In this situation, the Board thoroughly located that “KITCHEN” is a “highly suggestive, if not descriptive” word when utilised in connection with these merchandise and solutions, and therefore the actuality that the marks shared this term did not offset the a lot of dissimilarities in between the marks.

QuikTrip also challenged the Board’s review of the 13th DuPont issue, which broadly covers any other reality(s) suitable to the result of the use of the mark, together with, for instance, a terrible religion intent to confuse. QuikTrip argued that this factor weighed in favor of a likelihood of confusion, citing proof alleging that Weigel photographed QuikTrip stores and marketing supplies. The Court pointed to Weigel’s several initiatives to modify its mark, however, and concluded that the evidence did not exhibit an intent to confuse.

Lastly, QuikTrip argued that the Board improperly assessed the likelihood of confusion things by relying on the first DuPont variable (the similarity or dissimilarity of the marks) and disregarding the other variables. The Federal Circuit concluded in any other case, detailing: “[c]ontrary to QuikTrip’s assertion, the Board did not disregard proof supporting a likelihood of confusion. It just found that this kind of proof was outweighed by the variations amongst the marks.”