United States: Can The Marks EVADE OFFSHORE ARMOR And EVADE OUTDOOR ARMOR Cause A Likelihood Of Confusion With The Mark ARMOUR?

These are two of the questions the TTAB sought to answer in the proceeding of Under Armour, Inc. v. Evade, LLC.  In this proceeding, Under Armour sought to cancel Evade's trademark registration to its word mark EVADE OFFSHORE ARMOR and oppose Evade's trademark application for the word mark EVADE OUTDOOR ARMOR, with all accusations being based on a likelihood of confusion with Under Armour's own ARMOUR mark.

In making its determination, the TTAB relied on the familiar multi-prong du Pont factors.

The most relevant likelihood of confusion factors were unsurprising.  The TTAB found that the involved goods were identical for shirts, and closely related as applied to other basic articles of clothing.  The TTAB presumed that the channels of trade and classes of purchasers for the shirts are the same because the goods are the same, and found that the channels of trade and purchasers are the same for basic articles of clothing.

As discussed in a prior blog addressing this same case, while it is almost a certainty the TTAB would hold Under Armour's UNDER ARMOUR mark to be famous for clothing should sufficient evidence be made part of the record, the mark ARMOUR alone is not famous.  Therefore, this factor had little relevance to the issue at hand.

The TTAB concluded that the term "armor" (and "armour") is slightly suggestive of clothing in general, and merely descriptive for protective-type clothing.   For general athletic clothing, the term merely suggests there may be a "protective" quality to it.  However, for specifically designed protective clothing, the term identifies a key safety feature, namely, protection.

Most interesting was the TTAB's discussion of the similarities of Evade's marks and Under Armour's mark in terms of appearance, sound, meaning, and overall commercial impression.

EVADE OFFSHORE ARMOR.  The TTAB found that consumers are likely to notice and accord source-identifying significant to the ARMOR portion, and not the EVADE OFFSHORE portion.  While EVADE is arbitrary in the context of apparel, the TTAB discounted the addition of EVADE as merely adding a trade name, which generally does not avoid confusion.  The TTAB found the term OFFSHORE is somewhat suggestive of clothing for fishing (i.e., for offshore fishing).  The TTAB concluded that customers who were already familiar with Under Armour's ARMOUR mark would assume that the addition of EVADE OFFSHORE simply identifies a previously unidentified source behind the ARMOUR mark in the context of apparel used for fishing.

EVADE OUTDOOR ARMOR.  The TTAB found that EVADE OUTDOOR ARMOR may be viewed as an extension or variant of Under Armour's ARMOUR mark.  The TTAB discounted the term EVADE as being viewed as a trade name.  The TTAB also found that the term OUTDOOR is descriptive for clothing used for "outdoors" activities, and thus has less significance.  The TTAB determined that consumers already familiar with Under Armour's ARMOUR mark will mistakenly assume that the addition of EVADE OUTDOOR simply identifies a source behind the ARMOUR mark in the context of outdoor clothing.

As a result, the TTAB concluded there is a likelihood of confusion as to both EVADE OFFSHORE ARMOR and EVADE OUTDOOR ARMOR relative to Under Armour's ARMOUR mark.  This was in spite of the fact that ARMOUR alone was not determined to have fame, but only the term UNDER ARMOUR.  But there was no likelihood of confusion between UNDER ARMOUR and EVADE OUTDOOR ARMOUR in spite of the fame.

The proceeding is Opposition No. 91195620 and Cancellation No. 92052716 (October 29, 2015) [non-precedential], aff'd per curiam, Appeal No. 16-1531 (Fed. Cir. Feb. 28, 2017)

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