Federal Circuit States No Probability of Confusion Concerning Keep Marks

Addressing the evaluation and application of the DuPont chance of confusion components, the US Court of Appeals for the Federal Circuit upheld the Trademark Demo and Attraction Board’s locating of no likelihood of confusion among W WEIGEL’S Kitchen area NOW Open & Structure and QT KITCHENS & Design and style for food and beverages marketed in the parties’ respective advantage merchants. QuikTrip West, Inc. v. Weigel Suppliers, Inc., Situation No. 20-1304 (Fed. Cir. Jan. 7, 2021) (Lourie, J.)

QuikTrip West has utilized its mark QT KITCHENS due to the fact 2011 in link with its combination gasoline station/convenience outlets. In 2014, Weigel Suppliers began utilizing W KITCHENS in relationship with its similar stores. Responding to QuickTrip’s stop-and-desist letter, Weigel twice altered its mark: initially removing the “S” from “KITCHENS” to make it singular and changing the font, and then including the text “WEIGEL’S” and “NOW OPEN” (and when once more modifying the font). Even so, when Weigel submitted an software to register its ultimate modified mark in 2017, QuikTrip opposed.

The Board concluded that there was no likelihood of confusion among the two marks and dismissed the opposition. Although a lot of components weighed in help of a likelihood of confusion finding—including partly equivalent and connected services, overlapping trade channels and individuals, and equivalent order conditions—the Board ultimately located that the distinctions amongst the marks were being significant plenty of to outweigh people other aspects.

On attraction, QuikTrip argued that the Board erred in three ways:

• It improperly assessed the marks’ similarities.

• It failed to properly contemplate the evidence of Weigel’s undesirable faith.

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

The first DuPont factor considers the similarity (or dissimilarity) of the marks. QuikTrip argued that the Board gave inadequate pounds to the shared expression “KITCHEN,” although offering undue bodyweight to the other pieces of the marks. The Courtroom disagreed: “[i]t is not incorrect for the Board to decide that, ‘for rational reasons’ it must give ‘more or considerably less body weight . . . to a distinct attribute of the mark’ presented that its top conclusion about the likelihood of confusion ‘rests on [a] thing to consider of the marks in their entireties.’” In this case, the Board properly identified that “KITCHEN” is a “highly suggestive, if not descriptive” phrase when utilised in relationship with these merchandise and expert services, and consequently the reality that the marks shared this phrase did not offset the quite a few dissimilarities concerning the marks.

QuikTrip also challenged the Board’s evaluation of the 13th DuPont component, which broadly covers any other actuality(s) pertinent to the effect of the use of the mark, such as, for case in point, a terrible religion intent to confuse. QuikTrip argued that this variable weighed in favor of a likelihood of confusion, citing evidence alleging that Weigel photographed QuikTrip suppliers and promoting materials. The Court pointed to Weigel’s several endeavours to modify its mark, on the other hand, and concluded that the evidence did not show an intent to confuse.

Eventually, QuikTrip argued that the Board improperly assessed the probability of confusion components by relying on the first DuPont factor (the similarity or dissimilarity of the marks) and disregarding the other variables. The Federal Circuit concluded usually, describing: “[c]ontrary to QuikTrip’s assertion, the Board did not disregard evidence supporting a likelihood of confusion. It basically identified that these types of evidence was outweighed by the differences between the marks.”