Andre Young, popularly known as Dr. Dre, is many things: hip hop legend,
famed producer, powerful music executive, wildly successful entrepreneur,
and philanthropist. He was a founding member of N.W.A., one of the most
influential rap groups of all time, and has been called the “single
most influential producer in hip-hop history” by
Rolling Stone magazine. Dr. Dre Bio.
RollingStone. [online] Available at:
https://www.rollingstone.com/music/artists/dr-dre/biography [Accessed 11 May 2018].
Dre also founded multiple record labels and is credited for discovering
and introducing artists such as Snoop Dogg, Eminem, and 50 Cent. Dre was
behind the development of the “Beats” headphone brand, which
was recently acquired by Apple for a reported $3 billion, following which
he and his partner donated a $70 million endowment to the University of
Southern California to create the “USC Jimmy Iovine and Andre Young
Academy for Arts, Technology and the Business of Innovation.”
One thing Dre is not: a doctor.
Draion M. Burch, D.O., on the other hand,
is a doctor—a board certified osteopathic doctor and OB/GYN—whose
nickname “Dr. Drai” is used by his family, professors, medical
colleagues, and patients. Dr. Drai provides obstetric and gynecological
medical services and speaking services on women’s health and transgender
health. Describing himself as “America’s OB-GYN,” Dr.
Drai has also authored books (including
20 Things You May Not Know About the Vagina), made appearances on television, radio, and social media platforms, published
online videos, and given presentations relating to men’s and women’s health.
In 2015, Dr. Drai applied to federally register the trademark and name
“DR. DRAI” with the United States Patent and Trademark Office
(USPTO) for use in educational and entertainment services, and health
care consulting in the field of osteopathic medicine, obstetrics, and
gynecology (Application Serial No. 86590205). Drai also applied to register
a logo, the text of which reads, “DOCTOR DRAI,” below which
are the words “OBGYN & MEDIA PERSONALITY” (Application
Serial No. 86730410). Drai applied to use these marks broadly in connection
with printed and online materials, and educational services, all in the
area of men’s health and women’s health.
To the popular producer and hip-hop icon, Drai’s proposed marks were
unacceptable, prompting the DJ to oppose the doctor’s applications
on the basis that the they created a likelihood of confusion with Dre’s
“DR. DRE” mark, a false suggestion of connection between Dre
and Drai’s products, and dilution of Dre’s mark. On May 3,
2018, after a three-year fight between the two, the Trademark Trial and
Appeal Board (TTAB) of the USPTO issued a 49-page ruling denying Dre’s
opposition to the applications.
Likelihood of Confusion
To evaluate Dre’s likelihood of confusion claim, the TTAB analyzed
several factors, including the similarity of the marks, the strength of
Dre’s mark, and the relatedness of goods and services covered by
Similarity of Marks
The likelihood of confusion is viewed in the context of the average purchaser,
who normally retains a general rather than a specific impression of trademarks.
In this regard, the TTAB concluded that Dre successfully demonstrated
that the marks are sufficiently similar in terms of their commercial impression
such that persons who encounter the marks would be likely to assume a
connection between the parties. As to the “DR. DRAI” name,
the TTAB pointed out that it was phonetically equivalent to Dre’s.
Furthermore, notwithstanding that the logo proposed by Drai had several
stylized elements—including design elements in the letters spelling
the word “doctor,” a representation of a heart rate element
through the middle of the logo, and also included the designation “OBGYN
AND MEDIA PERSONALITY”—the TTAB found that Drai’s mark
was more similar than dissimilar, indicating a likelihood of confusion.
Strength of Prior Mark
The TTAB also found that the “DR. DRE” mark—which predates
the “DR. DRAI” mark—has achieved a degree of renown
in the music field and is viewed as strong and distinctive in connection
with musical sound recording and musical sound recording production services.
The “DR. DRE” mark has come to be associated with and refers
uniquely and unmistakably to Dre. Thus, this factor also weighed in favor
of the DJ.
Relatedness of Goods and Services
In the likelihood of confusion evaluation, the TTAB pointed out that the
issue is not whether purchasers would confuse the goods or services, but
whether there is a likelihood of confusion as to the source of the goods
or services. Dre argued that Drai’s proposed use of marks in connection
with educational and entertainment services, namely, providing motivational
and educational speaking, are related to Dre’s musical composition
and production services in light of the entertainment nature of both types
The TTAB rejected this argument, concluding that the only similarity between
the respective services is that they both fall under the broad category
of entertainment services, and such general point of similarity is not
enough to support a finding that the parties’ specific services
are related. Therefore, because Dre could offer no evidence as to how
musical composition, musical production, and educational motivational
speaking services are related, the fact that the services fall within
the general category of entertainment is insufficient to show relatedness.
Also, critical for the TTAB’s conclusion was the conditions of sale
of the products and services in connection with the marks. Because Drai’s
typical fee for a speaking engagement is $5,000 and he charges between
$1,000 and $5,000 for medical services, the TTAB found that the consumers
of Drai’s services would exercise a high degree of care, such that
they would not mistakenly confuse his services with those of Dre.
Thus, although the similarity of the marks and the strength of the “DR.
DRE” mark favor Dre, those factors are outweighed by the differences
in the goods and services provided under the marks, and there is no likelihood
False Suggestion of Connection
Dre also argued that Drai’s proposed marks falsely suggested a connection
with the well-known DJ. While acknowledging that “DR. DRE”
is associated with and refers uniquely and unmistakably to the musician,
the TTAB concluded that Drai was not attempting to appropriate Dre’s
fame or reputation such that purchasers would mistakenly presume a commercial
connection exists between the two.
Examining whether consumers of the “DR. DRAI” marks would think
only of the well-known Dr. Dre name, the TTAB questioned whether Dre’s
reputation as a musician and producer is of such a nature that when the
“DR. DRAI” marks are used, consumers will understand them
to refer to Dre. The TTAB accepted Drai’s argument that it is not
likely consumers would recognize the proposed marks as referring to Dre
because he is not a medical doctor nor is he qualified to provide any
type of medical services or sell products specifically in the medical
or healthcare industry. As a result, there was no evidence to establish
that Dre’s reputation in the recording and entertainment industry
is of such a nature that a connection with Drai’s educational and
motivational speaking services or his medical and healthcare products
and services would be presumed.
In concluding its analysis and rejecting Dre’s claims, the TTAB also
noted that it was apparent that there was no actual intent by Drai to
trade on the goodwill generated by Dre’s name. The proposed marks
were filed by Drai because, simply, that is his name. More importantly,
as the medical professional testified, Dre is known, in part, for misogynistic
and homophobic lyrics; as an OB-GYN and member of the LGBT community,
an association with Dre would reflect poorly on Drai as a doctor. Indeed,
Drai testified that, as someone who actually went to medical school, he
was appalled that Dre would think that he wanted to be like him.