On January 25, 2016 Scott Slavick's article, "Flying Mojo LLC Grounded by TTAB Ruling on Consent Agreement, Confusion" was published in InsideCounsel.com
Flying Mojo LLC Grounded by TTAB Ruling on Consent Agreement, Confusion
When two parties own very similar marks used in connection with related goods, the courts are not going accept the likelihood of confusion, even if the parties themselves are willing to risk it.
That's likely why in In re Flying Mojo, LLC the TTAB affirmed the USPTO's refusal to register Flying Mojo's mark Purple Haze for "electronic sound pickup for guitars and basses," in spite of a consent letter from the owner of the registered mark Haze for "sound amplifiers." The Board found likelihood of confusion between the two marks based on their similar commercial impressions and their complementary nature, and dismissed the applicant's argument that musicians are sophisticated consumers.
In his latest article for InsideCounsel.com, Slavick notes he is skeptical that seeking consent from the owner of a cited registration is an effective strategy for clients facing a rejection of an applied-for mark based on likelihood of confusion. Such letters come at a handsome price because they weaken the registrant's trademark rights, he adds, and if the party seeking the letter cannot work out a deal, it must be willing to walk away from its own sought-for mark or risk being sued for willful infringement.
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