Personal hygiene in the bathroom is big business. People use various air fresheners, matches, sprays, etc. to cover odors in the bathroom. Poo-Pourri hopes to corner the market on bathroom air fresheners and related products. Specifically, it hopes to leverage its marks to obtain broad coverage for all “POO” marks relating to bathroom scent products.
POO-POURRI® is a personal care product that one sprays into the toilet to trap toilet odor before it escapes into the room. It contains various essential oils and comes in numerous different scents. When launched in 2007, Poo-Pourri made about $1,000,000 in revenue. By 2018, Poo-Pourri made over $63,000,000 with its products.
Scentsible, LLC d/b/a Poo-Pourri (“Poo-Pourri”), owns the trademark POO-POURRI® for air fresheners in class 5. The mark claims a date of first use of March 2007. They also own various other “POO” marks such as POO-TONIUM® and POO LA LA® for air deodorizers.
Poo Tanicals Mark
Squatty Potty, LLC (“Squatty”) recently obtained a trademark registration for POO TANICALS® for bathroom deodorants and household deodorizers in class 5. They claim a date of first use of September 2020. Squatty began selling stools in 2011 that sit at the foot of the toilet to assist in the bowel elimination process. However, they recently moved into other bathroom products such as the deodorizers listed in the POO TANICALS® registration. Subsequently, Poo-Pourri instituted a cancellation proceeding with the Trademark Trial and Appeal Board (TTAB) against the mark citing a likelihood of confusion.
Likelihood of Confusion Between Poo-Pourri and Poo Tanicals
Poo-Pourri alleges a likelihood of confusion given the similarity between the marks and goods sold. Poo-Pourri alleges that their cited marks all being with the word “POO” and are a turn of a phrase. For example, “potpourri” turns to “Poo Pourri”; “plutonium” turns to “Poo-Tonium”; and “Ooh La La” turns to “Poo La La”. Similarly, Squatty’s mark turns “botanicals” to “Poo-Tanicals”. Poo-Pourri also alleges the goods sold are identical. The goods are also sold to the same consumers and in the same channels of trade.
The Examiner for Squatty’s mark did not cite any of the Poo-Pourri marks against it. However, this is not dispositive of a lack of likelihood of confusion. The Trademark Trial and Appeal Board will weigh the evidence presented by both sides and evaluate the similarity of the marks using the Dupont factors.
In a likelihood of confusion case, the important consideration is whether an ordinary consumer would be confused as to the source of the goods. Here, similar goods sold to the same consumers in the same trade channels. The TTAB will have to decide if Poo-Pourri is entitled to a broad scope of protection that includes any use of the word “POO” as a play on words. Squatty has until April 12th to file their response. Stay tuned folks.
Yes, while marks are considered as whole, a distinctive portion of the mark can be given more weight than a common term.