TTABlog Test: Are These Two Alligator Designs Confusingly Similar for Clothing?

Lacoste Alligator S.A. opposed registration of the mark shown below left, claiming a likelihood of confusion with its registered mark shown below right, both for clothing. Opposer's sales, advertising, and media coverage led the Board to conclude that Lacoste's alligator design marks are "'renowned' in the clothing market, and, at the very least, commercially quite strong." But what about the marks? Aren't the very different? How do you think this came out? Lacoste Alligator S.A. v. Southern Smocked Company, LLC, Opposition No. 91244445 (August 25, 2021) [not precedential] (Opinion by Judge Michael B. Adlin).

The Board found the marks to be similar in their entireties as to appearance, sound, connotation and commercial impression. Both depict green, right-facing alligators. As to the wording in applicant's mark, "SMOCKED COMPANY" is descriptive and disclaimed and "SOUTHERN" is "quite suggestive" of geographic origin. "This makes the literal element of Applicant’s mark weak, and less important in our analysis." Moreover, the alligator design is larger that the wording in applicant's mark.

While the parties’ alligators have different facial expressions, and Opposer’s alligator has “dots” on its body while Applicant’s does not, the marks are similar enough that some of the many consumers familiar with Opposer’s strong and “iconic ” mark would be likely to assume that Applicant is somehow affiliated with Opposer, perhaps as its subsidiary or licensee, especially because both parties use green, right facing alligators in connection with identical goods.

The Board found that this case brought to mind a number of prior decision finding confusing likely between two designs, despite obvious differences in details.