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In re Guild Mortgage Co.

DuPont Analysis Must Analyze Even Uncorroborated Assertions of No Actual Confusion

In re Guild Mortgage Co., __ F.3d __, 2019 WL 178435 (Fed. Cir. Jan. 14, 2019) (MOORE, Reyna, Chen) (TTAB) (3 of 5 stars)

Fed Cir vacates refusal to register “GUILD MORTGAGE COMPANY.” The TTAB erred in finding a likelihood of confusion with a previously registered mark because the TTAB’s opinion failed to analyze factor 8 of the DuPont analysis (i.e., “the length of time during and conditions under which there has been concurrent use without evidence of actual confusion”) at all. Although Guild had not submitted any declarations testifying as to an absence of confusion between the applied-for mark and the previously registered one, the absence of any positive evidence of confusion was something the TTAB had to take into account. Majestic Distilling, 315 F.3d 1311 (Fed. Cir. 2003), which found uncorroborated statements regarding an absence of confusion minimally probative for DuPont factor 7 (nature and extent of any actual confusion) is not contradictory. At Dupont factor 8, Majestic Drilling expressly considered the absence of any known instances of confusion, and on remand the TTAB should do the same.

KEYWORDS: TRADEMARK; LIKELIHOOD OF CONFUSION