<em> Tribe of Two, LLC v. Vidal </em>

The Federal Circuit affirmed the Trademark Trial and Appeal Board’s decision in Tribe of Two, LLC v. Eritaj Design Corporation dismissing Tribe of Two’s opposition to Eritaj’s Trademark.

The purpose behind trademarks is twofold: (1) to identify the source of a product, and (2) to help consumers by distinguishing products. On the one hand, trademark owners have an interest in ensuring that their product is easily identified by consumers because of the investment that the owner makes in connecting the trademark to the product. On the other hand, consumers have an interest in ensuring the product they purchase is genuine. If consumers could not rely on the products mark, they would need to spend additional time researching whether the product was legitimately connected to their brand preference. The scope of a recently filed trademark and its potential to confuse customers led the Federal Circuit Court of Appeals (“Federal Circuit”) to adjudicate the following notice of opposition.

Tribe of Two, LLC (“Tribe of Two”) filed a notice of opposition on March 28, 2020, to Eritaj Design Corporation’s (“Eritaj”) Trademark (No. 88622661) under Section 2(d) of the Lanham Act, 15 U.S.C. § 1052(d) claiming Eritaj’s mark “is likely to cause confusion, mistake, or deception as to the source of [Eritaj’s] Goods.” Tribe of Two maintained, at the time of opposition notice, and currently maintains two registered design marks (Registration Nos. 5924569 and 4377523) both of which include an upright “T” and an upside-down “T” wherein the upside-down “T” nestles in the ninety-degree angle created by the vertical and horizontal lines of the upright “T.” 

Eritaj’s mark also consisted of an upright and upside-down “T” but included an additional horizontal bar atop the upright “T” and below the upside-down “T.” Additionally, Eritaj’s upside-down “T” did not nestle in the ninety-degree angle of the upright “T.” Instead, the upside-down “T” began and ended at the same horizontal level as the upright “T” and the two “T”s were separated more than Tribe of Two’s “T”s. The Trademark Trial and Appeal Board (“TTAB”), determined that “[having] considered all of the arguments and evidence of record and all relevant DuPont factors … Notwithstanding the relationship between the goods, and the overlapping channels of trade and classes of consumers, because the marks … are visually distinct and create different commercial impressions, we find that [Tribe of Two] has failed to show by a preponderance of the evidence a likelihood of confusion between [Eritaj’s] mark and [Tribe of Two’s] pleaded registered marks.” 

Tribe of Two appealed TTAB’s dismissal of its opposition to the Federal Circuit decision. The Federal Circuit affirmed TTAB’s decision after reviewing “the TTAB’s legal conclusions de novo and its underlying factual findings for substantial evidence.” The Federal Circuit rejected Tribe of Two’s argument, “that the TTAB … erred in its DuPont factor analysis.” The Federal Circuit determined that TTAB’s analysis of DuPont factors one, two, three, five, and twelve because “the TTAB found Eritaj’s and Tribe of Two’s mark to be visually distinct and create different commercial impressions (factor 1).” The decision confirmed that a single factor could carry enough weight in the DuPont factor analysis to determine dissimilarity between marks, “despite finding overlapping goods and channels of trade and classes of consumers (factors 2 and 3).” 

Tribe of Two also argued that “‘all doubts as to whether confusion, mistake, or deception is likely should be resolved in favor of the senior user.’” The Federal Circuit rejected this argument because Tribe of Two failed to “identif[y] where the TTAB has expressed any doubt regarding a likelihood of confusion” and the Federal Circuit, on their de novo review did not find any likelihood of confusion either. Without any likelihood of confusion between the two marks, Tribe of Two’s seniority argument became superfluous. 

The Federal Circuit’s decision in this case exemplifies the purpose of trademark law. By affirming TTAB’s dismissal of Tribe of Two’s opposition to Eritaj’s trademark, the court answered a core question in trademark litigation – are the marks similar enough to confuse consumers.