Target Brands, Inc., the well-known multichannel retailer, recently received affirmation from the U.S. Trademark Trial and Appeal Board that its “bullseye” design mark is a moniker that deserves to be respected.
In Target Brands, Inc. v. Artificer Life Corp., Target had opposed two trademark applications for registration of the mark ARTIFICER and Design for a wide variety of clothing and accessories items in International Class 25 and jewelery items in International Class 14. The applications for the trademark ARTIFICER included with the following design element:
As grounds for the notice of opposition, Target relied on fourteen of its trademark registrations for its bulls-eye design in conjunction with one or more words, such as “target,” “couture,” and “expect more, pay less” for numerous goods and services, including apparel and jewelry items. Target’s cited registrations all included the following bullseye design mark* together with the respective word marks sought for protection:
In evaluating the merits of Target’s position, the Board found Target’s bullseye mark to be inherently distinctive as used in connection with its apparel and jewelry items. This reasoning was based on Target’s testimony that the mark has been used in various forms since at least 1962 in over 1,700 retail stores in the United States. In its likelihood of confusion analysis, the Board went on to rule in favor or Target on virtually all of the Dupont factors for analyzing whether a moving party has met its burden of proof. Specifically, the Board found Target’s bullseye mark to be a famous mark based on several evidentiary factors, including a consumer survey, as well as advertising and sales figures that were all indicators in support of the mark being well-known to the relevant purchasing public. The Board also found in favor in Target on the factors of similarity of the goods, similarity of the trade channels, and similarity of the trademarks. As it related to the similarity of the marks, the Board noted that the proper test is not a side-by-side comparison, but rather the overall commercial impression that both marks convey to potential purchasers. In finding in favor of Target on this factor, the Board indicated that the bullseye was the dominant feature in both parties’ trademarks.
Trademark Attorney Practitioner note: Target’s case was not flawless. It did not properly submit any of its trademark registrations into evidence, and had to to rely on its common law usage and related evidence to establish priority. It also sought to bring up for the first time in its Trial Brief the issue of dilution by blurring, but was barred by the Board from doing so. This once again serves as a reminder to trademark opposition attorneys that strict adherence to U.S. Trademark Trial and Appeal Board rules concerning Federal Rules of Evidence and other procedural requirements is mandatory when arguing trademark opposition cases before the Board.