The online real estate database Zillow flexed its muscle recently with the announcement that it will acquire its competitor Trulia for $3.5 billion, giving it about 61% of total home listing internet searches. With such power Zillow is established as a force to be reckoned with. Unfortunately for Zillow, its might doesn’t hold much influence over the U.S. Patent and Trademark Office (USPTO), which recently rejected Zillow’s opposition to LoanZilla’s trademark application. The Office determined that there is no likelihood of confusion between Zillow’s registered trademark and the LoanZilla mark that LoanZilla applied to register.
The dispute began when LoanZilla filed a trademark application on its name in 2011 in the class covering mortgage brokerages. It claimed use in commerce back to May of 2010. The mark was examined and no conflicting marks were found by the trademark examiner. But before a trademark application can mature into a trademark registration, the mark must be published. This provides notice and an opportunity for anyone to oppose registration of the trademark. LoanZilla’s trademark application published in October of 2011. During the publication period, Zillow filed a Notice of Opposition claiming that the similarity of the names would cause confusion between the real estate database and the mortgage broker.
An opposition proceeding is adjudicated by the USPTO’s Trademark Trial and Appeal Board (“TTAB”). In an opposition, the TTAB evaluates likelihood of confusion between the two marks using the “DuPont factors”. These are established factors, including similarity of services and names that are applied to evaluate whether consumers are likely to be confused between the brands.
In the case of LoanZilla, the TTAB compared the services and found that although not identical, there is some overlap between the services of the two companies. While the TTAB held that the similarity of the services weighed in favor of a finding of a likelihood of confusion, it also found that many of the other DuPont factors weighed against a finding of likelihood of confusion. In particular, the TTAB found that the term “zilla” found in the LoanZilla mark is most often associated with Godzilla and stated, “as a result, the two marks create substantially different overall commercial impressions.”
The difference between the marks in commercial impression weighed against a finding of a likelihood of confusion. Determining that consumers are not likely to be confused between the two brands, the TTAB rejected Zillow’s opposition to LoanZilla’s trademark application, allowing the mortgage broker to move forward with its trademark registration.