Gerry “Bubba” Watsonv.Russell T. Faulk

Trademark Trial and Appeal Board

Jun 1, 2016

No. 91210196 (T.T.A.B. Jun. 1, 2016)

Mailed: June 1, 2016 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board ---- Gerry “Bubba” Watson v. Russell T. Faulk ---- Opposition No. 91210196 to Application No. 85566229 filed: March 11, 2012 ---- Laura C. Brooks, Ballard Spahr, LLP, for Opposer. P. Jeff Martin, The Law Firm of P. Jeffrey Martin LLC, for Applicant. ---- Before Kuhlke, Mermelstein, and Adlin, Administrative Trademark Judges. Opinion by Mermelstein, Administrative Trademark Judge: Alleging use of his mark in commerce, Applicant seeks registration of BUBBALOVE.COM on the Principal Register for Golf shirts; Headgear, namely, caps and hats; Polo shirts; Shirts and short-sleeved shirts; Short-sleeved or long- sleeved t-shirts; Sport shirts; Sweat shirts; Tank-tops; Tee shirts. Gerry “Bubba” Watson opposes registration based on a likelihood of confusion and several grounds discussed more fully below. Applicant denied the salient allegations of the notice of opposition and raised nine affirmative defenses, Answer 4 TTABVue 5-6. Applicant did not argue his affirmative defenses in his brief on the case (in fact, Applicant did not file a brief), so we give them no further consideration. Gen. Mills This Opinion is not a Precedent of the TTAB Opposition No. 91210196 2 Inc. v. Fage Dairy Processing Indus. SA, 100 USPQ2d 1584, 1588 n.1 (TTAB 2011) (“Claims, counterclaims, or defenses which are not argued in a party’s brief are con- sidered waived.”), judgment set aside on other grounds, slip op. 91118482 (TTAB Jan. 22, 2014). I. Description of the Record The pleadings and, by operation of the Trademark Rules, the file of the opposed application are of record. Trademark Rule 2.122(b). Opposer filed the following evidence: 1. The testimony of Jens Beck, Opposer’s agent and manager, with exhibits. 7 TTABVue. 2. Notice of reliance on two registrations owned by Applicant. 8 TTABVue. • Reg. No. 41123091 for BUBBA LOVE for use on goods identical to those identified in the subject application. • Reg. No. 39442252 for BUBBA’S LOVE SHAK for use in connection with “restaurant and bar services.” 3. Notice of reliance on two pending applications filed by Opposer. 9 TTABVue. Both applications were filed April 30, 2012, based on an intent to use the marks in commerce, and are still pending. • App. No. 85612524 for BUBBAGOLF, for use on and in connection with: 1 Issued March 13, 2012, based on use in commerce, and alleging first use and first use of the mark in commerce on June 5, 2011. 2 Issued April 12, 2011, based on use in commerce, and alleging first use and first use of the mark in commerce on March 5, 2010. Opposition No. 91210196 3 Athletic apparel, namely, shirts, pants, jackets, foot- wear, hats and caps; golf pants; golf shirts; t-shirts; shirts; sweatshirts; jackets; shorts; footwear; golf shoes; socks; headwear; visors; swimwear; Golf bags, golf bag tags, golf club covers; Promoting awareness of the sport of golf and the profes- sional golf career of Bubba Watson through social media applications; Providing a website featuring the sport of professional golf and the professional golf career of Bubba Watson. • App. No. 85612484 for BUBBA GOLF, for use on and in connection with goods and services identical to those in the ’524 application, with the ad- dition of “golf skirts.” 4. Notice of reliance on Office Actions from Opposer’s pending application files, suspending examination of each application pending disposition of Appli- cant’s ’229 application (and two others). 10 TTABVue. Applicant submitted no testimony or other evidence. II. Issues When filing a notice of opposition using ESTTA, the Board’s online filing system, a potential opposer must (1) enter certain data about the proceeding in an electronic form; and (2) attach a written pleading setting out the opposer’s allegations and claims. The written pleading must meet the requirements for a complaint set out in the Federal Rules of Civil Procedure, which require, among other things, “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The Board considers the electronic form together with its attached written pleading as a single filing. See PPG Indus. Inc. v. Guardian Indus. Corp., 73 USPQ2d 1926, 1927-28 (TTAB 2005). But the mere listing of grounds for opposition Opposition No. 91210196 4 on the electronic form (which is all the electronic form requires or permits) is not by itself a sufficient pleading of those claims. The opposer is required to properly set out allegations in support of his claims in the attached pleading. In this case, Opposer identified the following grounds for opposition on the elec- tronic form (we display them substantially as they appear in the record): Deceptiveness Trademark Act section 2(a) False suggestion of a connection Trademark Act section 2(a) Consists of or comprises a name, portrait, or signature of a living individual without writ- ten consent, or the name, portrait, or signa- ture of a deceased president without the written consent of the surviving spouse Trademark Act section 2(c) Priority and likelihood of confusion Trademark Act section 2(d) Dilution Trademark Act section 43(c) 1 TTABVue 1-2. As can be seen, the electronic form simply names several grounds for opposition and states the relevant section of the Trademark Act. The form does not provide a short and plain statement of the claims and is not designed to do so. Opposer’s one- page (double-spaced), written “pleading” states in narrative form the following rele- vant allegations: • Opposer uses his applied-for marks “Bubba Golf” and “BubbaGolf” “in connection with clothing, golf accessories, golf related websites and promotions specifically associated with Opposer and marketed by him. Opposer does not disclose the date on which the alleged use commenced. • Opposer is “a well-known professional golfer on the PGA Tour.” • Opposer’s “name, image and likeness will be a major component of the marketing Opposition No. 91210196 5 efforts and. . . . Applicant’s [sic: Opposer’s] marketing approach is to utilize his own persona and likeness. . . .” • Opposer’s “customer base will be golfers and golf fans.” • “After application for [Opposer’s] BUBBAGOLF and BUBBA GOLF marks, the Examining Attorney noted prior pending applications that may conflict with [Op- poser’s] marks.” • “The instant prior pending applicant, for the mark BUBBALOVE.COM, has ad- vised that the mark is intended to be used in connection with its bar and restau- rant.”3 • Opposer attempted without success to negotiate a consent agreement with Appli- cant. • Registration of Applicant’s mark “is directly contrary to 15 U.S.C. § 1052 on the basis of the . . . application consisting of a name of a living individual without his consent to register.” • “[I]f . . . [A]pplicant is allowed to register its mark, [Opposer] is concerned such will dilute his hard earned goodwill, cause confusion and deceive the public into believing the goods and services of . . . [A]pplicant are somehow endorsed by, or affiliated with, [Opposer]. Such is simply not the case and is without [Opposer’s] consent. 3 As set out above, the subject application actually covers several items of apparel, although Applicant’s Registration No. 3944225 (BUBBA’S LOVE SHAK) is registered for “restaurant and bar services.” While the ’225 Registration has been proffered as evidence by Opposer, the only issue before us is the registrability of BUBBALOVE.COM for the goods identified in the subject application. Opposition No. 91210196 6 * * * In its present form, the notice of opposition (or parts of it) might not have survived a motion to dismiss under FED. R. CIV. P. 12(b)(6). While the electronic form clearly identifies several cognizable grounds for opposition, Opposer’s attached pleading al- leges - at best - weak factual support for some of the elements of those grounds. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (“Threadbare recitals of the elements of a cause of action, sup- ported by mere conclusory statements, do not suffice.”). Nonetheless, Applicant did not file a motion to dismiss or a motion for a more definite statement.4 And even if he had, we most likely would have pointed out the infirmities of the notice of opposition and we almost surely would have allowed Opposer leave to replead some or all of his claims; the record makes clear that Opposer would have been able to do so for at least some of his claims. Perhaps Applicant knowingly opted not to file a motion to dismiss because he realized that Opposer did have viable claims, and a motion to dismiss would simply have allowed Opposer the opportunity to plead them more effectively. Perhaps Applicant inadvertently slept on his right to test the adequacy of the notice of opposition. Or perhaps Applicant had no objection to the claims as they were set out in the notice of opposition. (Applicant clearly had notice of the claims Opposer was trying to plead because they were identified in the electronic form.) Whatever the reason, this matter has now gone through pleading, discovery, trial, and briefing 4 In his answer, Applicant alleged as a defense that “Opposer fails to state a claim upon which relief may be granted,” without further elaboration. Answer 4 TTABVue 5. But as noted, Applicant’s defenses were waived by his failure to assert them in a motion or in a trial brief. Opposition No. 91210196 7 with no objection from Applicant to the adequacy of Opposer’s pleading. Significantly, Opposer submitted three notices of reliance and the testimony of Mr. Beck, all without objection from Applicant. (Applicant did not attend Mr. Beck’s deposition, 7 TTABVue 7, and thus waived any objection that should have been made when the testimony was offered.) As will be seen, Mr. Beck testified as to Opposer’s prior use of his mark and the goods it was used to identify. And if there were any doubt of the matter, Opposer’s brief made clear that Opposer was claiming that con- fusion is likely between Applicant’s mark and his own. 12 TTABVue 6-8. Although Applicant was not required to file a trial brief, by failing to do so it missed the oppor- tunity to respond to Opposer’s brief by arguing that the issue of likelihood of confusion raised in Opposer’s brief was unpleaded and thus not properly before us. When a party fails to object to evidence in support of an unpleaded claim (and not relevant to any properly-pleaded claim), it can be deemed to have tried the unpleaded issue by implied consent. See FED. R. CIV. P. 15(b)(2). While Opposer’s trial evidence is not ideal, it was clear enough to put Applicant on notice that Opposer was pursuing the issue of likelihood of confusion. Thus, to the extent that Opposer’s pleading is insuf- ficient, we consider the pleadings to be amended by implied consent to include a like- lihood of confusion claim. FED. R. CIV. P. 15(b)(2). We will focus on Opposer’s ground of “priority and likelihood of confusion” pursu- ant to Trademark Act § 2(d), which was tried by implied consent, and for which evi- dence was submitted. As we find that claim adequate to dispose of this case, we need not discuss the other grounds identified in the notice of opposition. Opposition No. 91210196 8 III. Evidence Relevant to Likelihood of Confusion By notice of reliance, 8 TTABVue, Opposer submitted evidence of two applications filed by him, seeking registration of BUBBAGOLF and BUBBA GOLF for various items of apparel, including shirts, pants, golf pants, golf shirts, t-shirts, shorts, hats, and caps, as well as for other golf-related goods and services. Office actions from the files of Opposer’s applications were submitted, 10 TTABVue, indicating that both ap- plications were initially suspended pending disposition of the subject application. The USPTO’s records indicate that Opposer’s ’524 application for BUBBAGOLF remains in suspension. Opposer’s ’484 application for BUBBA GOLF was eventually pub- lished and no opposition having been filed, a notice of allowance issued on April 12, 2016. Jens Beck testified that since 2005 he has been Opposer’s sports agent and “man- age[r] of his entire business” including sponsorship contracts and marketing. Beck Test. 7 TTABVue 10. According to Mr. Beck, Opposer has used “Bubba Golf” as a trademark for “golf apparel” since “around 2007.” Id. at 17-18. The apparel was sold by Steve & Barry’s, a retail chain, for whom Opposer was “an endorser and ambassa- dor.” Id. at 18. “Bubba [referring to Opposer] used the clothing when he played on the PGA tour.” Id. at 19. “Steve & Barry’s had about 200-plus retail stores throughout the country.” Id. The Bubbagolf5 clothing line included “[t]-shirts, golf shirts, sweat- ers, jackets, shorts, pants. That’s it.” Id. at 20. 5 The transcript of Mr. Beck’s testimony is not consistent in its printing of Opposer’s mark. It most often appears as “Bubbagolf,” but occasionally as “Bubba Golf.” Even assuming that Opposition No. 91210196 9 During the Beck deposition, Opposer submitted in evidence several photographs, which Mr. Beck identified: Q. And are these items that were included in the Bubbagolf line? A. These are not the - these were not - well, the shorts are. The T-shirts were incorporated in a line that he did with Travis Matthew, who was his apparel sponsor af- ter Steve & Barry’s. Q. So do you know approximately when Mr. Watson’s rela- tionship with Travis Matthew began? A. About 2009 or 2010. Q. So in 2009 or 2010 or thereabout Mr. Watson again used the Bubbagolf mark to launch a new line of Bubbagolf clothing; is that accurate? A. That’s correct. 7 TTABVue 21-22. Opposer also offered several articles, webpages, and other documents in evidence during Mr. Beck’s testimony.6 Exhibit 6 is an article from an unidentified website, titled Watson launches apparel line ‘bubbagolf.’ The article, apparently written by “PGA TOUR staff,” and dated July 10, 2007, discusses the launch of Opposer’s branded clothing. For example: Port Washington, N.Y. - Power-golfer Bubba Watson . . ., Opposer uses both spellings as trademarks, neither counsel’s questions nor Mr. Beck’s testi- mony indicates which spelling was intended by the speaker. The two would be pronounced identically (or very nearly so), so the variations in spelling may reflect no more than the court reporter’s inconsistency in transcribing the oral testimony. 6 Exhibits 1-5 are webpages and articles primarily discussing Opposer’s golfing career. None of them discusses Opposer’s use of his mark on apparel and we see no need to discuss them further. Opposition No. 91210196 10 who currently ranks first on the PGA TOUR in driving dis- tance and was a top-five finisher at the 2007 U.S. Open, is bringing his game to Steve & Barry’s® stores nationwide with the launch Tuesday of the affordable apparel line bub- bagolf”!. [sic] Exclusively available at the retailer’s 200+ stores begin- ning July 10, bubbagolf features high-quality, low-priced golf and casual apparel. . . . The collection of more than 30 pieces blends Watson’s irreverent attitude and fast-rising success in professional golf with Steve & Barry’s ground- breaking achievements in bringing to market great-look- ing, comfortable clothing at prices substantially below in- dustry norms. 7 TTABVue 61. “Highlights” of the apparel line were said to include pants, shorts, polo shirts, cotton polo shirts, windshirts, and cotton t-shirts. 7 TTABVue 62. Exhibit 7 is an article from Sports Business daily, dated March 13, 2008, also discussing Opposer’s clothing: Steve & Barry’s partnered with PGA Tour golfer Bubba Watson last year to launch “Bubbagolf,” a line of “inexpen- sive golf apparel,” according to Adam Schupak of GOLFWEEK. Watson’s line features 30 items including golf shirts and caps. Others have “tried and failed to launch” low-cost golf apparel, but “few have had at their disposal the reach of Steve & Barry’s,” which has 237 stores across 37 states. . . . 7 TTABVue 64. Exhibit 8, 7 TTABVue 65, is an online discussion thread7 about “BubbaGolf ap- parel.” On November 17, 2008, a commenter identified as MO_Hacker and using the 7 This website is unidentified. The heading on the first page, partially obscured by an adver- tisement, reads “the Hacker’s Pa[ ] Don’t just play go[ ].” To the extent any objections could have been made as to the authenticity of this or Opposer’s other documentary evidence, those objections were waived by Applicant’s failure to assert them. Nonetheless, we have taken the nature and provenance of Opposer’s documents into account in considering the weight to which they are due. Opposition No. 91210196 11 following avatar: wrote that he purchased a BubbaGolf shirt, which “looks and feels pretty nice. At less than $10.00 I don’t know how you can go wrong. They also had shorts, pants and windshirts available as well as a pretty good selection of shirts.” Three others joined the conversation, although it seems that MO_Hacker was the only one to have actu- ally seen or purchased Opposer’s goods. 7 TTABVue 65-70. Photographs of two shirts were posted by MO_Hacker, but Opposer’s marks cannot be discerned on either of them. 7 TTABVue 68. Finally, Exhibit 9 consists of photographs of one pair of shorts and five t-shirts. 7 TTABVue 71-76. Mr. Beck testified that the shorts were part of the original “Bub- bagolf” line, and that the t-shirts were part of the line of apparel Opposer sold in connection with “Travis Matthew, who was his apparel sponsor after Steve & Barry’s.” 7 TTABVue 17. Opposer’s mark is not clearly discernable on the shorts in the photograph Mr. Beck referred to, 7 TTABVue 71, or on one of the shirts, 7 TTABVue 72, but the remaining four t-shirts clearly bear the words BUBBA GOLF. Id. at 73-76. For example: Opposition No. 91210196 12 7 TTABVue 73, 74. IV. Standing Our primary reviewing court has explained the requirements of standing: A petitioner is authorized by statute to seek cancellation of a mark where it has “both a ‘real interest’ in the proceed- ings as well as a ‘reasonable’ basis for its belief of damage.” ShutEmDown Sports, Inc. v. Lacy, 102 USPQ2d 1036, 1041 (TTAB 2012) (citing Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999)). And a pending application that has been refused registration based on a likelihood of confusion with a registered mark is sufficient to show that the petitioner seeking to cancel the registered mark is the type of party Congress authorized under 15 U.S.C. § 1064. Id. (citing Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 1029, 213 USPQ 185 (CCPA 1982)). As ex- plained in Lipton, the desire for a registration with its “at- tendant statutory advantages” is a “legitimate commercial interest,” so to satisfy the requirements for bringing a can- cellation proceeding, it is enough to show that a petitioner “filed an application and that a rejection was made because of” some existing registered mark. 670 F.2d at 1029. Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014) (citations altered). The same principles apply to oppositions. Opposer in this case pleaded and proved that examination of his applications for Opposition No. 91210196 13 registration of BUBBA GOLF and BUBBAGOLF was suspended when the Exam- ining Attorney cited the subject application as a potential bar to registration under Trademark Act § 2(d), and that Opposer’s BUBBAGOLF application remains sus- pended for that reason. That is sufficient to show Opposer’s real interest and a rea- sonable basis for his belief of damage resulting from Applicant’s registration. Life Zone Inc., 87 USPQ2d at 1959 (TTAB 2008). V. Likelihood of Confusion A. Priority In order to assert a likelihood of confusion, Opposer must prove his ownership of “a mark registered in the Patent and Trademark Office, or a mark or trade name previously used in the United States by another.” Trademark Act § 2(d). Lacking a registration, Opposer asserts rights arising from his prior use of the marks BUBBAGOLF and BUBBA GOLF. Opposer’s claim requires proof of a proprietary interest in his marks, obtained prior to either the filing date of the subject application or Applicant’s proven date of first use, whichever is earlier. Herbko Int’l Inc. v. Kappa Books Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1378 (Fed. Cir. 2002); Otto Roth & Co., Inc. v. Universal Corp., 640 F.2d 1317, 209 USPQ 40, 43 (CCPA 1981); Miller Brewing Co. v. Anheuser-Busch Inc., 27 USPQ2d 1711, 1714 (TTAB 1993). Because Applicant submitted no evidence of use, the earliest date on which he may rely for priority is the filing date of his application, March 11, 2012.8 Lone Star Mfg. Co., Inc. v. Bill 8 In the subject application, Applicant claims a date of first use and first use in commerce of January 15, 2012. However, “[t]he allegation in an application for registration . . . of a date of use is not evidence on behalf of the applicant . . .; a date of use of a mark must be estab- lished by competent evidence.” Trademark Rule 2.122(a)(2). Opposition No. 91210196 14 Beasley, Inc., 498 F.2d 906, 182 USPQ 368, 369 (CCPA 1974) (applicant “took no tes- timony and thus is restricted to its filing date for first use”). Mr. Beck’s unrebutted testimony is sufficient to prove Opposer’s use of his mark prior to Applicant’s priority date. Mr. Beck testified from his personal knowledge that beginning “around 2007,”9 7 TTABVue 17-18, Opposer sold branded “[t]-shirts, golf shirts, sweaters, jackets, shorts, [and] pants” through his business venture with Steve & Barry’s, a retail chain with “about 200-plus retail stores throughout the country.” Id. Although Mr. Beck was not specific about the duration of Opposer’s business with Steve & Barry’s, it seems likely to have ended prior to “2009 or 2010,”10 when Opposer launched a new line of Bubbagolf clothing with Travis Matthew. 7 TTABVue 21-22. Mr. Beck also identified several photographs of t-shirts bearing the mark BUBBA GOLF as part of Opposer’s Travis Matthew clothing line. 7 TTABVue 17. The evi- dence thus establishes Opposer’s ownership of a mark that was “previously used in the United States.”11 Trademark Act § 2(d). Specifically, we find that Opposer began use of his marks by the end of 2007 with Steve & Barry’s. But to the extent there is 9 Because Mr. Beck did not identify any specific date in 2007, for purposes of determining priority, we interpret Opposer’s business with Steve & Barry’s to have begun on the last day of that year, December 31, 2007. 10 Again, for purposes of priority, we consider Opposer’s business with Travis Matthew to have commenced on the last day of this non-specific range, December 31, 2010. 11 The webpages and articles introduced with Mr. Beck’s testimony are admissible as printed publications, Trademark Rule 2.122(e), and as such they cannot be considered for the truth of what is written in them. Life Zone Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1956 n. 5 (TTAB 2008). Thus, the materials are not competent evidence of Opposer’s use of his mark or his priority; they are proof only of the fact that such material was published and publically available. Nonetheless, Exhibits 6 and 7 - articles published July 10, 2007, and March 13, 2008, and discussing Opposer’s branded apparel - are clearly consistent with Mr. Beck’s testimony of Opposer’s use of his mark on apparel at that time. Opposition No. 91210196 15 any doubt, Mr. Beck’s testimony and identification of BUBBA GOLF t-shirts sold through Travis Matthew establishes Opposer’s priority as no later than December 31, 2010, more than a year prior to Applicant’s constructive use date of March 11, 2012. B. Relevant du Pont Factors Our determination under Trademark Act § 2(d) is based on an analysis of the probative facts in evidence that are relevant to the factors bearing on the issue of likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In considering the evidence of record on these factors, we keep in mind that “[t]he fundamental inquiry mandated by Section 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); see In re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999). 1. The similarity or dissimilarity and nature of the goods or services; Channels of trade; Relevant purchasers The involved application identifies several items of casual apparel, including shirts and t-shirts. Mr. Beck testified that the line of clothing Opposer sold through Steve & Barry’s included t-shirts and that the clothing sold through Travis Matthew also included t-shirts. To that extent, the evidence shows Opposer’s use of its mark on goods identical12 to those identified in the subject application. 12 Although at least some of the parties’ other clothing items are obviously related, we need not analyze that relationship because the parties’ goods are identical in part. See In re La Opposition No. 91210196 16 The fact that the goods are identical in part also means that we must assume that purchasers and channels of trade are also identical in part. Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003) (“Given the in-part identical and in-part related nature of the parties’ goods, and the lack of any restrictions in the identifications thereof as to trade channels and purchasers, these clothing items could be offered and sold to the same classes of purchasers through the same channels of trade”); In re Smith and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994) (“Because the goods are legally identical, they must be presumed to travel in the same channels of trade, and be sold to the same class of purchasers”); see In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence regarding channels of trade and classes of consumers, the Board was entitled to rely on this legal presumption in determining likelihood of confusion). These factors strongly support Opposer’s claim that confusion is likely. 2. The similarity or dissimilarity of the marks in their entireties In comparing the marks at issue, we consider their appearance, sound, meaning, and commercial impression. Palm Bay Imp., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). “The proper test is not a side-by-side comparison of the marks, but instead ‘whether the marks are sufficiently similar in terms of their commercial impression’ such that persons Peregrina Ltd., 86 USPQ2d 1645, 1647 (TTAB 2008) (“Likelihood of confusion may be found based on any item that comes within the identification of goods in the involved application and registration.”). Opposition No. 91210196 17 who encounter the marks would be likely to assume a connection between the par- ties.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). “[I]n articulating reasons for reaching a conclusion on the issue of confusion, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties. Indeed, this type of analysis appears to be unavoidable.” In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). Finally, we bear in mind that “where, as here, the goods at issue are identical, ‘the degree of similarity necessary to support a conclusion of likely confusion declines.’ ” In re Viterra Inc., 101 USPQ2d at 1908 (quoting Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992)). Because there is some ambiguity on this record about whether Opposer uses BUBBAGOLF, BUBBA GOLF, or both,13 we will consider Opposer’s use to be lim- ited to BUBBA GOLF.14 That is the only use that was clearly documented in the 13 Opposer has made of record its applications for registration of BUBBAGOLF and BUBBA GOLF for use on goods including shirts and t-shirts. Nonetheless, a pending application is not evidence of the applicant’s use of the applied-for mark. Nike Inc. v. WNBA Enters. LLC, 85 USPQ2d 1187, 1193 n. 8 (TTAB 2007). 14 The distinction makes little, if any, difference. “It is almost too well established to cite cases for the proposition that an otherwise merely descriptive term is not made any less so by merely omitting spaces between the words. . . .” Minn. Mining & Mfg. Co. v. Addressograph- Multigraph Corp., 155 USPQ 470, 472 (TTAB 1967) (citations omitted). See also Seaguard Corp. v. Seaward Int’l, Inc., 223 USPQ 48, 51 (TTAB 1984) (SEA GUARD and SEAGUARD are “essentially identical”); In re Best Western Family Steak House, Inc., 222 USPQ 827 (TTAB 1984) (“there can be little doubt that the marks [BEEFMASTER and BEEF MASTER] are practically identical”). There is no indication in this record that BUBBA GOLF and BUBBAGOLF present different commercial impressions. Opposition No. 91210196 18 record, see 7 TTABVue 73-76 (photographs of Opposer’s t-shirts bearing the BUBBA GOLF mark), and confirmed by Mr. Beck’s testimony. See 7 TTABVue 17-18. Applicant’s mark is BUBBALOVE.COM. Both marks feature the term BUBBA as the first element. There is no record evi- dence that BUBBA is descriptive or otherwise weak for the parties’ identical t-shirts or other goods. In Opposer’s mark, the word GOLF appears to be descriptive because, as Mr. Beck testified, Opposer uses the mark on “golf apparel.” 7 TTABVue 17-18. (Consistent with this, GOLF is disclaimed in Opposer’s pending ’484 application. 9 TTABVue 6.) GOLF is likewise descriptive of Applicant’s goods, which include “golf shirts,” and otherwise appear to be apparel of a type suitable for playing golf. As a result, prospective purchasers would be unlikely to consider the term GOLF as bear- ing strong source-identifying significance as part of a trademark for either party’s goods. In Applicant’s mark, BUBBA is followed by LOVE.COM. Although the subject ap- plication does not expressly indicate that Applicant’s goods are offered online, neither is that channel of trade excluded. And absent express limitations in the application, Applicant’s goods must be considered to be sold in all channels of trade normal for goods of the type identified. In re Elbaum, 211 USPQ 639, 640 (TTAB 1981) (citing Kalart Co., Inc. v. Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139 (CCPA 1958)). Accordingly, purchasers seeing Applicant’s mark are likely to believe that .COM is nothing more than an indication that Applicant’s goods are sold (in whole or in part) online. Again, little or no source-indicating significance is likely to be attached to the Opposition No. 91210196 19 ubiquitous top-level domain. See In re Hotels.com LP, 573 F.3d 1300, 91 USPQ2d 1532, 1537 (Fed. Cir. 2009) (“the TTAB could reasonably have given controlling weight to . . . the standard usage of ‘.com’ to show a commercial internet domain”); In re CyberFinancial.Net Inc., 65 USPQ2d 1789, 1792 (TTAB 2002) (“Simply put, the TLD ‘.com,’ as shown by the Examining Attorney’s evidence, signifies to the public that the user of the domain name constitutes a commercial entity.”). Finally, Applicant’s mark includes the word LOVE. There is no indication that this term is descriptive of Applicant’s goods. The phrase BUBBALOVE suggests that someone named Bubba loves someone or something or that someone loves Bubba. Either way, LOVE is subordinate to BUBBA in BUBBALOVE.COM because Bubba is either the one who is loved or the one doing the loving. The distinctive term BUBBA is common to both marks, and is the first element in each, thus the one most likely to be impressed upon consumers and remembered by them. See Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (“The presence of this strong distinctive term as the first word in both parties’ marks renders the marks similar, especially in light of the largely laudatory (and hence non-source identifying) significance of ROYALE.”). And while we cannot ignore the overall differences be- tween BUBBA GOLF and BUBBALOVE.COM - the word GOLF in Opposer’s mark and LOVE.COM in Applicant’s - in both marks the dominant impression is of the term BUBBA. We therefore find the marks in their entireties to be similar, which also weighs in favor of a finding of likelihood of confusion. Opposition No. 91210196 20 VI. Conclusion Opposer has satisfied his burden in making out a prima facie case of priority and likelihood of confusion. Applicant, having offered no evidence or argument to the con- trary or any objection to Opposer’s evidence or argument, has not rebutted that case. Upon consideration of the record we find that Opposer has standing and priority, that Applicant’s goods are identical in part to the goods for which Opposer’s own use of the mark has been established, and that the parties’ prospective customers and channels of trade are identical in part. While the marks are not identical, their overall similar- ity is enough, when considered with the other relevant du Pont factors, to find that confusion is likely under Trademark Act § 2(d). Decision: The opposition to registration of Application Serial No. 85566229 is SUSTAINED on the ground of likelihood of confusion under Section 2(d),15 and reg- istration to Applicant is refused. 15 We do not reach any other ground for opposition identified in the notice of opposition.