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Trademark Valet

Decisions · 87269041

PrecedentialLandmarkNo later change on its docket

In re Solid State Design Inc.

Serial No. 87269041 · Decided 2018-01-03 · Section 2(d) Ex Parte Appeal

What happened

The Board upheld the refusal to register a stylized “populace” mark with a person-silhouette design for map-based, real-time popularity-visualization software, finding it too similar to an already-registered “populace” mark with a globe design because both marks share the same dominant word and the registered mark’s software description was broad enough to legally cover the applicant’s software.

The marks

Applicant

populace (stylized, with silhouette of a person's head centered within the letter "o")

"Computer application software for mobile phones and desktop computers, namely, software for visualizing the popularity of places in real time, that uses an underlying map capability for navigation, sold as 'business to consumer' (B2C) software, and not as 'business to business' (B2B) software," in International Class 9

Cited registration

populace (orb or ball-shaped design in alternating red/white bands, with the word "populace" below in small black letters)

"Downloadable mobile applications for mobile phones and mobile electronic devices, primarily software for travel and destination marketing organizations and travel marketing professionals," in International Class 9

How the marks compared

DimensionFindingWhat the Board said
soundSimilarBoth marks are verbalized identically as “populace.”
appearanceSimilarBoth display “populace” in bolded all-lowercase, substantially similar stylization, though the accompanying designs (silhouette vs. globe) differ.
meaningSimilarBoth convey the dictionary meaning of “populace” (the people who live in a country or area); the Board rejected the argument that the differing designs create different connotations.
commercial impressionSimilarThe Board found the marks make highly similar overall commercial impressions because the shared dominant word outweighs the differing design elements.

Highly similar overall; the shared dominant word “populace” controls despite differing design elements.

du Pont factors that bore on the outcome

#FactorWeightWhat the Board found
1Similarity of the marksDispositive — Favored RefusalThe shared bolded lowercase ‘populace’ wording strongly supported confusion despite the different design elements.
2Relatedness of the goods or servicesDispositive — Favored RefusalThe software identifications are legally identical in part.
3Similarity of trade channelsFavored RefusalLegally identical goods are presumed to travel in identical channels.
4Conditions of sale and buyer sophisticationFavored RefusalThe overlapping classes of customers supported confusion.

Why this decision is significant

Precedential decision providing detailed guidance on distinguishing “namely” from “primarily” in software identifications and reinforcing that unrestricted mobile-app identifications will be construed broadly against the applicant in Section 2(d) analysis.

Research significance is Trademark Valet's editorial rating of how useful a decision is to practitioners. It is not a statement of precedential weight — that is the separate Precedential field, which comes from the Board.

Related decisions

The original record

Read the opinion and every filing on the Board's own docket. The summary above is our paraphrase, not a quotation from the opinion. The opinion is the authority.

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