Zillow may now be larger with its recent acquisition of Trulia, but not as big as LoanZilla!
In a recent decision of the U.S. Trademark Trial and Appeal Board, the Board dismissed Zillow’s trademark opposition proceeding against LoanZilla, finding no likelihood of confusion between the parties’ respective trademarks.
The case, Zillow, Inc. v. Super T Financial, Inc. DBA LoanZilla, pitted the online real estate listing behemoth against the Washington State mortgage brokerage doing business under the LoanZilla mark since 2010. In its grounds for why the trademark application of the Applicant, LoanZilla should be denied, the Opposer, Zillow, relied on eight U.S. trademark registrations of its ZILLOW trademark for real estate listing databases and associated services as well as mortgage-related services. In addition, Zillow submitted testimony of one of its officers as well as media reports and other evidence that was introduced to show consumer awareness and recognition of the ZILLOW mark.
The Board first compared the trademarks to determine the extent to which they were similar in appearance, sound, meaning and commercial impression. It observed that the although the letters “zill” were common to both trademarks, there was nothing common or unique to that letter combination, nor did Opposer prove that the “zill” component of its mark was distinctive. Therefore, it was concluded that focusing on those two components of the parties’ respective trademarks was an improper dissection of the Applicant’s mark for purposes of determining a likelihood of confusion.
In its defense, LoanZilla submitted numerous third-party registrations containing the suffix “zilla” for a variety of goods and services. The Board took note of the fact that the “zilla” moniker has been in wide-use to connote the monster known as godzilla, stating:
The evidence of record substantiates Applicant’s contention that the suffix -ZILLA suggests an association with the monster Godzilla and that this suggestiveness likely affects the commercial impression that customers will receive from the mark.
Accordingly, the Board found that no likelihood of confusion existed between the parties’ marks and entered judgment in favor of the Applicant.
Trademark Attorney Notes: This case highlights the importance of the need to properly introduce evidence in trademark opposition cases. Despite the fact that Zillow is a publicly traded company with substantial revenue, it did not properly introduce its sales and advertising and marketing expenditures into evidence, which led the Board to conclude that Zillow’s annual reports, without further substantiating testimony as to the veracity of the figures, were hearsay for the purpose of Zillow’s claim that its trademark was famous.