Q: Will my grounds for opposition suffice if marks are confusingly similar, but currently products are slightly different?
**Please note: Fictitious names were used below to protect the confidentiality of the matter. Here's the situation...
1." Dazzle With Love" was first used in commerce June 2012 and applied for trademark June 2017. "Dazzle With Love" has been in continued use without abandonment since 2010.
2. "Dazzle With Love" is a company specializing in the area of natural, handmade candles and plans to expand to body butters, oils, fragrances, etc.
3. Here comes "Dazzled With Love by Alicia Smith" whose first use in commerce was March 2017 and application of trademark was submitted May 2017. The company hasn't even been in business a year. I'm almost certain that the applicant had prior knowledge of "Dazzle With Love" before applying for the trademark.
4. "Dazzled With Love by Alicia Smith" is a company specializing in natural, handmade body butters, oils, fragrances, etc.
5. Each mark is similar in sound and meaning.
A:
Under your hypothetical, first mark has priority back to 2012, but only as to use with candles. Mere intentions to expand don't effectively expand the rights to other products/services. Second mark is nearly identical (the "by Alicia Smith" part is merely descriptive of the person offering the products, so would likely be disclaimed). So, then the issue becomes whether or not use of an identical mark with body butters, oils and fragrances is reasonably likely to cause confusion with an existing mark for candles. The focus would be on stopping the second mark from issuing at all, because the use of the second mark with body butters, oils and fragrances would almost certainly then pose a problem for the owner of the first mark to expand into those types of products. In other words, the assertion needs to be made that the second mark is already confusingly similar to the first and shouldn't issue at all.
Now, detailed analysis of whether or not the marks are confusingly similar when used with different types of products and/or services is a VERY situation-specific analysis, so there is no point in attempting to do that based on hypothetical names or products.
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