On June 13, the Federal Circuit reversed the Trademark Trial and Appeal Board (TTAB or Board) nonprecedential decision finding no likelihood of confusion between opposer Château Lynch-Bages' and applicant Château Angélus S.A.'s respective trademarks. The Federal Circuit reasoned that the Board erroneously determined that the marks at issue – "ECHO DE LYNCH BAGES" and "ECHO D'ANGÉLUS" – contained house marks and gave "predominant" weight to the similarity factor in its DuPont analysis to arrive at a finding of dissimilarity without substantial evidence.
The Board's DuPont analysis originally favored a finding of likelihood for confusion, in that the Board determined that two DuPont factors weighed in favor of confusion, one factor was neutral, and one factor weighed "somewhat" against confusion. But upon the Board's consideration of the similarities of the competing marks, which was correctly asserted to be "one of the most important considerations," the Board opted to analyze each mark as a "unitary expression" and found that the common term "ECHO" did not dominate either mark. The Board placed substantial weight on the terms "ANGÉLUS" and "LYNCH BAGES" and opined that the terms "appear[ed]" to be the parties' "house marks," even though neither party argued that the marks at issue included house marks. The bulk of the Board's similarity analysis was subsequently overrun by evaluating case law to determine how much weight to place on the presence of the supposed house marks. Because the marks "incorporate[d] different-appearing house marks as part of unitary expressions," the Board concluded that the dissimilarities outweighed the similarities in the respective marks, and the overall balance of factors weighed against likely confusion.
On appeal, the Federal Circuit vacated and remanded the TTAB decision, characterizing the Board's classification of "house marks" as unsubstantiated and the Board's focus on the house marks over the common term "ECHO" as flawed. House marks require a separate registration, as well as evidence showing the broad use of the mark and the mark's use in commerce, neither of which were presented to the Board. To proceed with a determination that the terms are house marks, the Board should have found substantial evidence of the mark's use in commerce, but the Federal Circuit stated that the Board made its observation based solely on its own "underdeveloped" investigation. The Board merely looked at the parties' other registrations to see whether they contain variations of the term. The Federal Circuit noted that this observation would have been harmless if it had been considered among the other DuPont factors fairly, but this observation was the clear driver of the TTAB decision. The Federal Circuit disagreed with the Board's finding that the common term "ECHO" was weak but stated that if the Board had reasoned that the marks are dissimilar without the house mark discussion or if there had been evidence substantiating the house mark determination, the Board's "analysis may have been sound." Ultimately, because the house mark determination lacked substantial evidence, the Federal Court held that the Board's conclusion of dissimilarity too lacked substantial evidence.
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