On January 26, 2015 Scott Slavick's article, "Caution flag's up, Racegirl!," was published on InsideCounsel.

Did the TTAB take a wrong turn on a precedential ruling in a likelihood of confusion case last month? Perhaps, suggests Scott Slavick, in his latest piece on InsideCounsel.com. "Caution Flag's Up, Racegirl!" tackles the curious case of the Redneck Racegirl trademark, in In re Covalinski, Serial No. 85/685,983 (December 18, 2014).

When comparing subject marks in trademark confusion cases the literal portion of a word and design mark is generally argued to make a more significant impression on the consumer. But that's not always the case, said the TTAB in Covalinski—and reversed a USPTO Examiner in the process.

Slavick reviews the ruling's implications, specifically the Board's decision that the commercial impressions of the two marks at issue were sufficiently distinct—despite agreeing with the USPTO's judgment that the trademarked articles were identical and the channels of trade the same. The Board focused on the unique appearance of the applicant's design mark as it would appear on sales tags on racing apparel, a move that Slavick suggests is problematic because trademark applications require or allow for no limitations on a mark's use in commerce.

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