David Lilenfeld Blog The intellectual property blog of David Lilenfeld

22Feb/161179

Trademark Office: FAVAZZA’S Is Confusingly Similar to LAVAZZA

By David Lilenfeld on February 22, 2016

Favazza’s, Inc. seeks registration on the trademark FAVAZZA’S for bar, catering, and restaurant services. Luigi Lavazza S.p.A. opposed registration of Favazza’s trademark on the ground of likelihood of confusion with the registered trademark LAVAZZA for coffee shops, bars, restaurants, cafeterias, pubs and catering services. 

The main argument made by the applicant is that because LAVAZZA is a family name and registered under Section 2 (f) it is “not entitled to the broad scope of protection reserved for arbitrary and fanciful marks.” Just because LAVAZZA could be a surname does not automatically weaken or narrow the scope of protection for opposer’s LAVAZZA trademark. The Trademark Trial Appeal Board recognized that opposer’s trademark was registered under Section 2 (f) but noted that the trademark is still “entitled to the same trademark protection as any other validly registered trademark.”

Applicant agreed that the services provided by the trademark FAVAZZA’S and the trademark LAVAZZA are identical and are in the same channels of trade to the same classes of consumers who exercise merely ordinary care in their buying decisions. These factors weigh heavily in favor of a finding of likelihood of confusion.

The factors set out in In re E. I. du Pont, 177 USPQ at 567 provide a framework for analyzing likelihood of confusion. The first du Pont factor is similarity or dissimilarity of the trademarks. Applicant argued that customers would know the trademark as Italian surnames that can easily be differentiated. The Trademark Trial Appeal Board, however, disagreed and held the trademarks to be “visually similar because they both contain AVAZZA and there is little, if any, trademark significance in the addition of the apostrophe and letter “S” in applicant’s trademark.” When the trademarks are compared as a whole, they are very similar in both appearance and sound. The slight differences are not enough to distinguish the trademarks from one another.

Regarding connotation, it is unclear whether customers would give meaning to the trademarks or view the trademarks as invented Italian words or surnames. The Trademark Trial Appeal Board found it unlikely that customers would regard one trademark as a surname and the other trademark as an invented Italian word. Hence, the Trademark Trial Appeal Board found the trademarks similar in sound, appearance, connotation and commercial impression. 

Opposer argued that its LAVAZZA trademark is famous but failed to provide sufficient evidence to support this claim.  It failed to prove what portion of its sales figures were attributable to restaurant services or what portion of its sales figures related to sales under the trademark LAVAZZA alone.

The last few du Pont factors are the nature and extent of any actual confusion and the length of time during and conditions under which there has been concurrent use without evidence of actual confusion. Applicant noted a lack of actual confusion of the trademarks despite coexisting with each other for between 30 and 35 years. However, because of the lack of evidence supporting opposer’s use of the LAVAZZA trademark, the Trademark Trial Appeal Board was unable to decipher whether there had been a meaningful opportunity for actual confusion.

In light of the relevant du Pont factors, the Trademark Trial Appeal Board found confusion likely and sustained the opposition to the trademark FAVAZZA’S.

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