Good Vibrations: Compare Marks As a Whole

China Healthways Institute, Inc. v. Wang, [06-1464](June 22, 2007)[NEWMAN, Friedman, Rader] The Federal Circuit reversed the TTAB's decision denying China Healthways opposition to Wang's application to register CHI PLUS on electric massagers on that ground that the mark was not confusingly similar to China Healthway's prior registered mark CHI (AND DESIGN).
SIGNIFICANCE: It is incorrect to compare marks by eliminating portions and simply comparing the residue.
BRIEF: LOF: The determination of likelihood of confusion is a question of law based upon underlying facts. The Federal Circuit found that the TTAB erred when it ignored the term CHI in the parties marks because it was "at least highly suggestive" and instead focused on the other components of the parties' marks. The Federal Circuit said that "The marks must be compared in their entirety, at least when the overall commercial impression is reasonably based on the entirety of the marks." The Federal Circuit said "It is incorrect to compare marks by eliminating portions thereof and then simply comparing the residue" and concluded that the word CHI is an integral part of both marks and must be given appropriate weight. The Federal Circuit then engaged in a detailed analysis of the marks noting that CHI was a major part of both marks, and set forth in heavy letters in each. The Federal Circuit discounted the fact that in Wang's mark only the "C" was capitalized as "unlikely to suggest different source of the product." The Federal Circuit likewise discounted the word "plus" in Wang's mark noting that it "ordinarily connotes a related superior product, not one from a different source." Finally, the use of a square dot for the "i" in Wang's mark was also found "unlikely to prevent customer confusion." Viewing the marks in their entireties, the Federal Circuit concluded that confusion was likely.