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No Likelihood Of Confusion Exists Even Where Marks Are Similar


In M2 Software, Inc. v. M2 Communications, Inc. (No, 05-1599; June 7, 2006), a Federal Circuit panel affirms the Trademark Trial and Appeal Board's finding of no likelihood of confusion between Applicant's M2 COMMUNICATIONS mark and Opposer's M2 SOFTWARE mark.

M2 Communications, Inc. applied to register the M2 COMMUNICATIONS mark in connection with interactive multimedia CD-ROMs in the fields of pharmacy and medicine. M2 Software opposed registration of the mark based upon its registration for M2 SOFTWARE for, in relevant part “computer software featuring business management applications for the film and music industries; and interactive multimedia applications for entertainment, education and information, in the nature of artists' performances and biographical information from the film and music industries.” (emphasis added). The board found that while the marks are similar, no likelihood of confusion was present, primarily upon findings that the goods in question were not related and that the channels of trade and purchasers are different.

The board's decision is found to be supported by substantial evidence. Regarding relatedness of the goods, the panel observes that “the board properly found that M2 Communications' goods do not come within the actual scope of M2 Software's registration.”

The panel also agrees with the board's finding that both goods being CD-ROMs did not alone make the goods related, stating “it was proper for the board to ground its determination of relatedness in the fields for which the goods are created, rather than the media format in which they are delivered.” The court also agrees with the board's finding that the channels of trade and purchasers for the goods are different, finding that M2 Software conceded that all of its known customers are in the music or entertainment industries, while M2 Communications deals only with pharmaceutical and medical customers.

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