TTAB Affirms Trademark Attorney’s Likelihood Of Confusion Refusal Of EZ “GRO” Over “EEZY GRO” Registration

ttab-trademark-attorney-examining-likelihood-of-confusion-ez-gro-eezy-gro.jpgThe Trademark Examining Attorney refused registration of Gardenlife, Inc.’s application for the trademark EZ GRO for “living flowers and plants and plant seeds” in light of the previously registered EEZY-GRO trademark for “flower pots and planters” under 15 U.S.C. §1052(d). The examining attorney also required a disclaimer of the word “GRO.” On appeal, applicant capitulated and included a disclaimer of the word “GRO.” As a procedural matter, the Board excluded materials attached to applicant’s brief from consideration on appeal because they were untimely under 37 C.F.R. § 2.142(d). Thus, the sole remaining issue on appeal was whether there was a likelihood of confusion between the two trademarks.

The Board considered the du Pont factors of (1) the similarity/dissimilarity of the trademarks, and (2) the similarities of the goods. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). As to the first factor:

We find the marks EZ GRO and EEZY-GRO substantially similar in terms of appearance, both comprised of two terms; the second in each being the identically misspelled word GRO (“grow”), the first in each being different fanciful spellings of the word “easy,” respectively EZ and EEZY. Although registrant’s mark contains two additional letters, they are not likely to be recognized and do not serve as distinguishing features because of their imbedded placement within the overall structure of registrant’s mark. In addition, and contrary to applicant’s contention, the hyphen in registrant’s mark is not a distinguishing feature and serves mainly as spacing between the two terms. See Goodyear Tire & Rubber Co. v. Dayco. Corp., 201 USPQ 485, 489 n.4 (TTAB 1978) (difference of hyphen insignificant).

(Side Note: It’s generally not a good idea to misspell common words in your trademarks, see #4 in trademark selection article here.)

The Board also rejected applicant’s argument that the two marks are pronounced differently because “it is settled
that there is no correct way to pronounce a trademark, and “applicant’s allusions to the contrary notwithstanding, we find the marks are phonetic equivalents, which will be pronounced identically.” The similarity/dissimilarity of the marks was found to favor a finding of likelihood of confusion.

Considering the du Pont factors of the relatedness of the goods, channels of trade and classes of purchasers, the Board found that applicant’s and registrant’s goods to be complementary items that are commonly used together, partly based on the Examining Attorney’s citations to third-party registrations that simultaneously include all the goods at issue. As there were no limitations to the channels of trade or classes of purchasers in the application or registration, the Board presumed that the products would be sold in the same trade channels to ordinary consumers.

Here, after careful consideration of all of the arguments and the evidence of record, we conclude that purchasers familiar with registrant’s flower pots and planters sold under the EEZY-GRO mark would be likely to believe, upon encountering applicant’s mark EZ GRO for living flowers and plants and flower and plant seeds, that such goods originate from or are sponsored by or affiliated with the same source.

A copy of the order is available here. In re Gardenlife, Inc., Serial No. 77709903 (April 14, 2011)[not precedential].