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The Trademark Trial and Appeal Board (TTAB) recently decided that the trademark TRIPLEYE is not so confusingly similar to the trademark 3RD EYE in an opposition proceeding. TRIPLEYE is the applied-for mark and 3RD EYE, standard word mark and logo, are the registered marks.
Both trademarks relate to software and instruments, where TRIPLEYE has to do with "apparatus and instruments for controlling and monitoring vehicles, namely simulators for the steering and control of vehicles" including LIDAR sensors, and 3RD EYE has to do with "vehicle safety equipment, namely, an on-board vehicular surveillance system" and other equipment including cameras and "vehicle detection equipment."
In evaluating whether the two marks are so similar as to confuse the target consumers, the Board evaluated selected DuPont factors. The Board first made a determination as to the fifth DuPont factor relating to the strength of the opposer's 3RD EYE mark because it affects the scope of protection entitled to the mark owner. The Board found the opposer's evidence of a few media articles and promotion at only one trade show to be underwhelming. The Board decided that given the evidence presented by the opposer, the fifth DuPont factor weighs against a likelihood of confusion.
The Board also considered third party registrations and use evidence to evaluate the sixth DuPont factor - the number and nature of similar marks in use on similar goods. The Board found that the word EYE, the only common element shared by the two marks, is commonly used for cameras. Therefore, the Board weighed the sixth factor against a finding of likely confusion.
Saving the best for last, the Board considered the first DuPont factor - how similar are the two marks in overall appearance, sound, connotation, and commercial impression. The Board found the following:
one mark has two one-syllable terms while the other is a single term with three syllables.
"the first part of each mark is different in sound and appearance"
the two marks "look and sound different overall"
the term "TRIPLEYE has a meaning of 'three eyes,' suggesting three cameras in this context, whereas 3RD EYE... has a specific understood meaning and connotation ... calling to mind an additional eye that provides extra-ordinary perception, including for example the 'mind’s eye' or 'inner eye.'”
Because of these differences, the Board found that the first DuPont factor weighs heavily against a likelihood of confusion.
The Board also found that the goods covered by the two marks have some overlap, e.g., cameras, and it presumed that these type of goods travel through the same trade channels to the same or similar classes of consumers. Therefore the Board decided that second and third DuPont factors favor a finding of likelihood of confusion.
With regard to the fourth DuPont factor, the Board considered the "least sophisticated consumer in the class" as required by Board precedent and determined that the goods are offered to the general public. Although some degree of care will be taken by these consumers, the Board decided that the fourth factor weighs in favor of finding a likelihood of confusion because of the level of likelihood of confusion.
In conclusion, the Board found that, as to Thirdeye's goods, the dissimilarity of the marks, together with the weakness of the only shared element, the word EYE, outweighed the other DuPont factors. The Board decided in favor of the applicant and ruled against the opposer.
Wei Wei Jeang is recognized by her peers in the 31ˢᵗ edition of The Best Lawyers in America® for exceptional work in Patent Law and Trademark Law for 2025.
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