December 16, 2014: In a recent determination by the Trademark Trial and Appeal Board (TTAB) (Opposition No. 91204412), Happy Green Company’s LLC’s application for “ANTHRO” in international class 3 for bath salts; bath soaps; cleaning and washing preparations; cosmetics and makeup; deodorants and antiperspirants; fragrance etc. was held to be too close to the trademark “ANTHROPOLOGIE” registered by Anthropologie, Inc. and U.O. Merchandise, Inc. ANTHROPOLOGIE is registered in several classes for retail department store services, clothing, handbags, and clothing and fashion accessories. The Board refused registration of the “ANTHRO” trademark on the grounds that a likelihood of confusion exists between the two marks.
As part of its argument, Anthropologie offered evidence that the Anthropologie retail stores sell items such as bath salts, bath soaps, moisturizers, perfumes and colognes. Although Anthropologie does not specifically own a trademark in international class 3 for bath and beauty products, the Board held that the retailers’ service mark for retail stores is sufficient, thus finding a relationship between goods and services. Anthropologie offered further evidence that while it does not have a specific registration for Anthro, the name is short for Anthropologie and is used internally by the company and customers worldwide in marketing and social media. Specifically, Anthropologie’s marketing team introduced evidence of the Anthro loyalty program where 2.3 million cards had been issued to customers since 2007. Ultimately, the Board found that Anthropologie has common law rights in Anthro, thus giving it the right to exclude others from using the mark.
The Board then went on to analyze the likelihood of confusion factors in a trademark matter as set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357,177 USPQ 563 (CCPA 1973). In its analysis, the Board concluded that the marks are very similar in sound and appearance, the respective goods and services are related in a sufficient manner and marketed in such a way that they will be encountered by the same persons under circumstances that could cause a mistaken belief that they originate from the same source, and that similar trade channels exist.
Now that it has been established that Anthropologie is using Anthro in commerce, the company would be wise to register the mark with the USPTO and put other potential applicants on notice that the mark is already taken.