In re Viterra Inc.
Case #: 2011-135
Dyk, Moore, O’Malley
Full Text Opinion: http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-1354.pdf
Trademarks: Concerning identical marks, the “degree of similarity necessary to support a conclusion of likely confusion declines.”
Opinion (O’Malley): Viterra Inc. (“Viterra”) wished to register “EXCEED” as a trademark for their brand of “agricultural seed,” but was denied by the examining attorney, because of the likely confusion to be made with a previously-registered word and design mark for an “agricultural seed,” called “X-Seed.” The Trademark Trial and Appeal Board affirmed the examining attorney’s finding, prompting Viterra to appeal. The Federal Circuit stated that the “degree of similarity necessary to support a conclusion of likely confusion declines” when the marks are identical. After applying the “substantial evidence” test and finding that Vittera’s mark was insufficiently different, the Federal Circuit AFFIRMED the Board’s decision.