Michael J. Foycik Jr., Esq.

This TTAB decision (Trademark Trial and Appeal Board) relates to an Opposition proceeding.  Here, the marks are as above, and clearly very similar but not identical.  The goods/services relate to smoking products and cigars. 

The TTAB upheld the Opposer's side, and refuses to grant registration to the Applicant's mark 'FATBOY'.  The TTAB considered these factors: “the similarity of the marks, the relatedness of the goods, and the overlap in channels of trade and classes of customers.”  The TTAB then concluded that the evidence of record “supports a finding of a likelihood of confusion as between applicant’s FATBOY mark and opposer’s FAT BOY mark, such that registration of applicant’s mark is barred under Trademark Act Section 2(d)”.

While the above decision may seem clear enough on its face, it is this writer's view that things may not be so simpler in other cases where the marks seems closely related.  In particular, the TTAB did not address the channels of commerce issue in detail, as there are several factors that bear on this including the types of customers, relative education levels between different types of customers, and the level of expertise or knowledge of the customers.  For example, if the customers are professional buyers, then their ability to discriminate between two close marks would be quite high, and confusion would be far less likely.