Figurative Marks: Judicial Similarity Analysis

2008 Heo 9399 Trademark scope confirmation

Similarity is assessed objectively and as a whole through appearance, pronunciation and concept. For figurative marks, appearance creates the dominant impression. Visually different devices are dissimilar where use on the same goods would not confuse consumers as to source.

Although both devices have a circular outline with floral and stem motifs, the following differences create distinct visual impressions.

The registered mark is blue, while the mark under review is black. In the latter,  petals surround an oval with open space and three stamens depicted as solid shapes. In the registered mark,  the flower has five petals, a filled interior and stamens formed by negative space. The stems and leaves in the mark under review are abstract,  whereas those in the registered mark are  relatively realistic. The registered mark also has a denser overall arrangement of petals. These differences create distinct dominant visual impressions, so consumers would perceive the devices as dissimilar.

The marks are dissimilar and would not cause confusion as to source even on identical or similar goods.