EZ BED finds life hard

In In re Team Worldwide Corp, a split panel of the US Patent and Trademark Office's Trademark Trial and Appeal Board (TTAB) has affirmed the refusal of an application for the mark EZ BED for "air mattresses for use in camping, air beds" due to a likelihood of confusion with the registered mark EASYBED for "telephone shop-at-home services in the field of mattresses, beds, and bedding; retail stores featuring mattresses, beds and bedding".

In July 2002, Team Worldwide Corp (TWC) filed for registration of the mark EZ BED (BED disclaimed) alleging a bona fide intention to use the mark in commerce under Section 1(b) of the Lanham Act. The examining attorney rejected the registration of the mark EZ BED under Section 2(d) on the grounds that the goods were sufficiently related to each other and TWC's mark so resembled the prior registered mark EASYBED as to be likely to cause confusion, mistake or deception among consumers. Upon final refusal, the applicant appealed.

The TTAB found there to be similarities between the marks that weighed in favour of a finding of likelihood of confusion. This was determined by examining the marks in terms of their appearance, sound, meaning and commercial impression as they appeared in the registration. The TTAB found the appearance of the marks to be similar because both start with the letter 'E' and end with the word 'BED'. 'EZ' is a well-recognized abbreviation of 'easy' so the marks would have the same meaning and connotation. Finally, the different spelling of the marks did not create a different commercial impression.

Next, the TTAB found the similarities between TWC's goods and the registrant's services to weigh in favour of finding a likelihood of confusion. TWC argued that the products were too dissimilar to be confused as they differed in nature, channels of trade and price. The TTAB found the nature of the goods to be similar because evidence showed that the identification for the prior EASYBED registration included mattresses and beds, which could also encompass air beds. The trade channels overlapped because all normal channels of trade had to be considered due to the absence of any limitations in the registration. Finally, the low price of the EZ BED air mattress would have resulted in consumers purchasing it without a great deal of deliberation, which could create confusion. The TTAB affirmed the refusal stating that any doubts should be and were resolved in favour of the registrant.

Administrative Trademark Judge Seeherman, in her dissent, disagreed with the majority on the issues of similarity between the marks and between the respective goods and services. She began by stating that the prior registered EASYBED mark was highly suggestive for the services and the ease of obtaining the services. Therefore, the registration was entitled to a more limited scope of protection. She found TWC's mark to have a distinctly different connotation that consumers would recognize. The evidence that the channels of trade were the same was inconclusive in her opinion because the EASYBED registration was not for goods and the evidence provided, indicating like channels of trade, was presented in the context of goods only. Finally, she concluded that it was not appropriate to assume that TWC's goods would be sold by the owner of the prior registered mark.

Brian Banner and Matthew Stephens, Rothwell Figg Ernst & Manbeck PC, Washington DC

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