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Understocked on Survey Evidence

A recent Trademark Trial and Appeal Board (TTAB) decision in the matter of Overstock.com, Inc. v. J. Becker Management rejected Overstock.com’s opposition to the registration of this mark:
mattress overstock

Overstock.com had complained that the registration would cause confusion with its own registered mark, OVERSTOCK.COM, but provided no evidence of actual confusion and, most importantly, no survey evidence that relevant consumers would think that the Mattress Overstock mark was in any way connected or affiliated with Overstock.com. With no survey, the TTAB applied the du Pont factors and found “no likelihood of confusion between Opposer’s mark, OVERSTOCK.COM, and Applicant’s mark.”

In the recitation of all the evidence submitted by Overstock.com there was no mention of any survey evidence that might show how customers of Mattress Overstock would react to the mark. Such a survey could have been quickly and easily created, and any number of survey formats could have been employed. It’s always dangerous to try to guess how a survey would have turned out, but without any survey evidence Overstock.com was definitely understocked.

Trademark

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