House Marks and Product Marks

A "house" mark consists of a mark that is used to indicate that a full line of products comes from the same source. All the products within the line carry the house mark, which informs purchasers and prospective purchasers that the products come from the same "house" or source. Famous house marks include: INTEL [PENTIUM], FORD [MUSTANG], APPLE [MACINTOSH], `KELLOGG'S [FROOT LOOPS'].   

A "product" mark refers to a mark that is used as a source identifier for one or more specific products within a line. For example, FROOT LOOPS is a product mark used for a particular breakfast cereal that is sold under the KELLOGG'S house mark, while MUSTANG is a product mark used for a particular automobile that is sold under the FORD house mark. If the house mark and the product mark are visually merged together and form the same commercial impression, it can be difficult to assess the extent to which the product mark has achieved consumer recognition independent of the house mark. The more integrated the display of the house mark and the product mark, the more difficult it is to treat them as separate elements with distinct commercial impressions. B. Kuppenheimer & Co., Inc. v. Kayser-Roth Corp., 326 F.2d 820, 822, 140 USPQ 262, 263 (CCPA 1964) (finding that the house mark "KUPPENHEIMER" and the product mark "SUP-PANTS" were integrated, with the double "P" in "KUPPENHEIMER" serving also as the double "P" in "SUP-PANTS," making "an indivisible symbol rather than two divisible words.").

[Note: Assessing the ‘fame’ of a product mark apart from the house mark can be difficult but may be essential if claiming the fame necessary for dilution under Trademark Act Section 43(c) or fame with regards to the DuPont Factor for likelihood of confusion.]

[Note: A “house” mark and “family” mark are different as well. See for more information on family marks.]

House Marks: Common Matter That Is Not Merely Descriptive

It is a general rule that likelihood of confusion is not avoided between otherwise confusingly similar marks (that are not merely descriptive or diluted) merely by adding or deleting a house mark. If two marks are nearly identical between the first portion of one mark and the entirety of another mark, confusion is likely notwithstanding any differences between the marks. In re Chica, 84 USPQ2d 1845 (TTAB 2007) (likelihood of confusion between CORAZON and CORAZON BY CHICA for jewelry); and In re Apparel Ventures, Inc., 229 USPQ 225 (TTAB 1986) (SPARKS BY SASSAFRAS (stylized) for clothing held likely to be confused with SPARKS (stylized) for footwear). An exception would be if the marks convey a different commercial impression or if the common matter in the marks were merely descriptive or diluted. See TMEP § 1207.01(b)(iii).

If the added house term is distinctive and is added to a highly suggestive term, it can change the overall commercial impression. In terms of overall commercial impression, in  Knight Textile Corp. v. Jones Investment Co., 75 USPQ2d 1313, 1314 n. 4 (TTAB 2005), the TTAB Board found that although the word ESSENTIALS was the entirety of the commercial impression created by the opposer’s mark, in the applicant’s mark it contributes relatively less to the mark’s commercial impression than does the house mark NORTON MCNAUGHTON.  This is because the word ESSENTIALS is highly suggestive (was used by many parties) as applied to the parties’ clothing items and as it appears in both parties’ marks, especially in applicant’s mark.  See In re National Data Corporation, 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985).

House Marks: Addition of Distinctive Matter and First DuPont Factor

Similarities of the Marks

The TTAB Board has frequently determined that additional distinctive elements, such as North Atlantic's ZIG ZAG house mark, may avoid likely confusion where the marks in their entireties convey significantly different commercial impressions or the matter common to the marks is so suggestive or weak that any source-indicating value it has is overwhelmed by the addition of an arbitrary, distinctive element. See, e.g., Rocket Trademarks Pty Ltd. v. Phard S.p.A., 98 USPQ2d 1066 (TTAB 2011) (ZU ELEMENTS (stylized) not confusingly similar to ELEMENTS in connection with identical clothing goods due, in part, to suggestiveness of term "elements"); and Knight Textile Corp. v. Jones Investment Co., 75 USPQ 1313 (TTAB 2005) (the mark ESSENTIALS found so highly suggestive that addition of house mark NORTON McNAUGHTON sufficed to distinguish the marks).

In the case of ZIG ZAG CLASSIC AMERICAN BLEND and CLASSIC CANADIAN for tobacco goods, the common element, CLASSIC, in the parties' marks is not merely descriptive but the record does show that it is highly suggestive and weak. As used in North Atlantic's ZIG ZAG CLASSIC AMERICAN BLEND mark, the term CLASSIC will not likely be perceived by purchasers as distinguishing source. That is, consumers encountering this mark will focus on the ZIG ZAG element and relegate the wording CLASSIC AMERICAN BLEND as highly suggestive of the tobacco goods. In the case of ZIG ZAG CLASSIC AMERICAN BLEND mark and CLASSIC CANADIAN, the dissimilarities outweigh the similarities and the marks are not confusingly similar. See Top Tobacco v. North Atlantic Operating Co. (TTAB 2011).

Famous House Marks May Obscure Whether Underlying Mark is Famous

While consumers have been frequently exposed to a particular mark, if it has not been as a stand alone mark, it may be the house mark that is famous. Independent media articles referencing and/or highlighting the renown of the underlying mark would be one way to provide independent fame. Cf. Bose Corp. v. QSC Audio Products Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1308 (Fed. Cir. 2002) ("those who claim fame for product marks that are used in tandem with a famous house mark can properly be put to tests to assure their entitlement to the benefits of fame for the product marks"). Am. Lebanese Syrian Assoc. v. Child Health Res. (TTAB 2011).

Protectable Trademark Rights are an important asset to a business. Don’t leave their growth and protection up to chance. Call us at (651) 500-7590 and Not Just Patents  Legal Services will help your House Marks, Product Marks, and Family Marks get all the protection they deserve.

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