• Aug 1 2019
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  • Category: CAFC Updates

When Hylete’s design mark for a stylized letter “H” for athletic apparel, namely, shirts, pants, shorts, jackets, footwear, hats and caps was published for opposition, Hybrid opposed on the grounds of likelihood of confusion with its stylized letter “H” (used in connection with conducting fitness classes; health club services, namely, providing instruction and equipment in the field of physical exercise; personal fitness training services and consultancy; physical fitness instruction). Hybrid also pleaded common law rights from its use of the same mark on athletic apparel, including shirts, hats, shorts and socks. The Board determined that the marks have similar commercial impressions and concluded that Hylete’s mark is likely to cause confusion with Hybrid’s previously used mark. Hylete appeals, arguing that the Board erred in its analysis by failing to compare Hylete’s stylized “H” mark with what it now characterizes as Hybrid’s “composite common law mark,” referring to Hybrid’s stylized “H” design appearing above the phrase “Hybrid Athletics” and several dots. Hylete could have raised the issue of Hybrid’s “composite common law mark” in the opposition proceedings (as Hybrid did with respect to its common law rights) or in the request for reconsideration, but did not do so. The CAFC concludes that none of the exceptional circumstances in which it is appropriate to consider arguments made for the first time on appeal are present, and that declining to consider Hylete’s new arguments does not result in injustice. Thus, the CAFC holds that Hylete’s arguments based on Hybrid’s “composite common law mark” raised for the first time on appeal are waived, and affirms.

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