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Archived updates for Tuesday, February 15, 2005

Fame Determined by Relative Consuming Public

In Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772 (Fed. Cir. February 9, 2005), the federal circuit discussed why a general public awareness standard does not adequately reflect the mark’s fame amongst the purchasing public:
Fame for confusion purposes arises as long as a significant portion of the relevant consuming public, namely, purchasers of champagne and sparkling wine, recognizes the mark as a source indicator. Although this court has not directly addressed the question of what segment of the consuming public must be aware of a mark in order for it to be considered famous in a likelihood of confusion analysis, it has indirectly suggested that a mark’s renown within a specific product market is the proper standard. See Bose Corp., 293 F.3d at 1376 (2002) ("Large market shares of product sales or large percentages of advertising expenditures in a product line would buttress claims to fame."). Similarly, this court’s precedent has defined the relevant product market for purposes of determining likelihood of confusion as customers and potential customers. Elec. Design & Sales, Inc. v. Elec. Data Sys. Corp., 954 F.2d 713, 716 (Fed. Cir. 1992) (holding that purchaser confusion is the "primary focus" and, in case of goods and services that are sold, "the inquiry generally will turn on whether actual or potential ‘purchasers’ are confused"). Accordingly, this court holds that the proper legal standard for evaluating the fame of a mark under the fifth DuPont factor is the class of customers and potential customers of a product or service, and not the general public. The Board did not err in so holding.
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