Whether goods or services are related is a central issue in the likelihood of confusion analysis. We have discussed before that it is the relatedness of the goods or services at issue, not international class numbers, that matter. We have also discussed that as searchers, we should try to cast as wide a net as is reasonable in order to uncover any potential issues. Unless there is a knockout, more often than not a search will reveal multiple marks that share elements and are in the relatedness realm. If you are using BOB, you will know this is the case by the yellow coloring of the search results. And yesterday we learned in the John M. Veleno v. Sheen S. Todd case that relatedness is not determined by general terms.
When reviewing search results to determine if goods or services are related, here are five questions to keep in mind:
- Are the goods sold in the same retail channels? In other words, are the goods sold in the same stores or on the same websites. If they are, then the goods are probably related.
- Are the goods actual complimentary goods like razors and razor blades, or do the goods just happen to be used together like a jacket and bicycles? If only a casual relationship exists between the goods, then they are probably unrelated.
- Are the goods or services advertised together? If the goods or services are advertised together, then they are probably related.
- Are the goods used in the performance of a service? If they are, then the goods and services at issue are probably related.
- Are others in the relevant industry offering both types of goods or services? For example, is it common for a restaurant to sell hotdogs and make its own ice cream? If the practice of doing both is common, then the goods or services at issue are probably related.
Sometimes reviewing search results will require a little more digging. But remembering these questions as you review the results will help you identify the results that deserve a little more attention.