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A Tale of Two Farm Boys

by Bruce Jobse

“Thumb’s Up” to the CAFC for last month’s precedential ruling in Odom’s Tennessee Pride Sausage, Inc. v. FF Acquisition, LLC. The role of the judiciary is to interpret the law and, hopefully, add some clarity to our decision-making processes with their respective rulings.  Well, we think the CAFC recently did just that when, rather than considering all thirteen factors of the traditional DuPont test for likelihood of confusion between two trademarks, the Court held that the issue of confusion can be determined solely by considering the visual similarities or dissimilarities of the respective marks.  At issue, on this appeal, was the likelihood of confusion between the two farm boy design marks indicated below:

Applicant’s applied-for farm boy mark

Opposer’s registered farm boy mark

Would you be confused that each of these marks identifies the same source of goods or services?  What specific visual items are different in each mark? You be the judge (an appellate judge, of course). 

In affirming the Trademark Trial & Appeal Board’s decision to dismiss the opposition proceeding, the Court stated that sufficient distinctions existed between the registered mark (pilgrim-looking farm boy) and the applied-for mark (regular-looking farm boy), noting specifically that the differing size and shape of hands and feet, shape and style of hats, and lack of straw in mouth and shoes on feet created two different commercial impressions, and therefore found no likelihood of confusion between the two marks as a matter of law.

Well, how did you do?  If you said the marks are dissimilar and identified even one or two of the Court’s distinctions, you are right, but I wouldn’t go buying that black robe just yet.


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