Federal Circuit Reverses the TTAB's Denial of Opposition to Trademark Registration

Case: China Healthways Institute, Inc. v. Xiaoming Wang, Fed. Cir., Case No. 2006-1464 (June 22, 2007)

The One Sentence Summary: The Federal Circuit reversed the TTAB's denial of an opposition to registration of trademark on the ground that viewed in their entirety, the marks CHI and CHI PLUS are likely to cause confusion as to the source of the products associated with those marks.

What They Were Fighting About: China Healthways Institute, Inc. ("Chi Institute") sells electric therapeutic massagers under its trademark CHI. Xiaoming Wang, a competitor, applied for the registration of the mark CHI PLUS for "electric massage apparatus." Chi Institute opposed Wang's trademark application on the ground that the two marks are so similar that there is a likelihood to cause confusion or mistake.

Federal Circuit Holdings: The TTAB's denial of Chi Institute's opposition is reversed.

• The TTAB erred in excluding CHI, the common and major component in both marks, from its analysis. "It is incorrect to compare marks by eliminating portions thereof and then simply comparing the residue."
• While the word "CHI" has a meaning in Chinese traditional medicine, it does not mean "electric therapeutic massager." The Federal Circuit thus rejects the TTAB's conclusion that the CHI component of the marks is at least highly suggestive, if not merely descriptive, when used in connection with electric massagers.
• The addition of the word "PLUS" in Wang's mark is unlikely to avoid confusion, because adding the word "plus" usually indicates that the product is a superior version of an earlier version, not a product from a different source.
• The TTAB erred in giving little weight to Chi Institute's evidence of large sales volume and length of use of the mark. Despite lack of evidence of market share, evidence regarding volume of sales, advertising and length of use is highly relevant and should have been considered.