Consumers are unlikely to confusion a GARDEN FRESH household cleaner with a GAR’N FRESH vegetable wash. In a rare registration refusal reversal (try saying that three times fast) the Trademark Trial and Appeal Board in In re Biowish Technologies International Inc. found certain cleaning products to be unrelated. Yes, I said “unrelated.”
The applicant applied to register the mark BIOWISH GARD’N FRESH for “fruit and vegetable wash.” The examining attorney cited a prior registered mark for GARDEN FRESH in connection with “cleaning preparations for household purposes.” The examining attorney argued that a “household purpose” is broad enough to encompass washing fruits or vegetables. The Trademark Trial and Appeal Board disagreed.
The Board found that a “household purpose” is limited to cleaning the home not fruits and vegetables. And while both goods are for a cleaning product, that similarity alone was insufficient to conclude a cleaner for the house is related to a cleaner for washing fruits and vegetables.
In this case, a trademark searcher’s intuition on the relatedness of goods factor would have likely arrived at the correct result. However, the Trademark Trial and Appeal Board has also found that shotguns for hunting and sports shooting are related to watches and jewelry- Walther v. Herriger. Unless you research prior case court decisions on whether these types of goods are considered related for likelihood of confusion purposes, no one would expect these goods are related.
This is why BOB’s algorithm includes a review of over 90 years of prior court decisions to evaluate the relatedness of goods factor, and it is capable of evaluating these prior case decisions faster than a manual search. In some cases, for example restaurant services, the Board has found over 100 goods and services to be related to restaurant services. It would take longer than a business day to search all 100 related goods and services. BOB does it an hour and a half.