L.A. Brands, LLC

Trademark Trial and Appeal Board

Nov 28, 2016

No. 86310904 (T.T.A.B. Nov. 28, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: November 28, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re L.A. Brands, LLC
_____

Serial No. 86310904
Serial No. 86311070
_____

Joshua A. Schaul of Sherman IP LLP,
for L.A. Brands, LLC
David E. Tooley, Jr., Trademark Examining Attorney, Law Office 112,
Angela Bishop Wilson, Managing Attorney.
_____

Before Wellington, Gorowitz and Heasley,
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:
L.A. Brands, LLC (“Applicant”) seeks registration on the Principal Register of the
mark 1776 (in standard characters)1 and the word and design mark ,2

1 Application Serial No. 86310904 (“the ‘904 standard character application”) filed on June
16, 2014, based upon Applicant’s claim of first use anywhere and use in commerce since at
least as early as January 11, 2013.
2 Application Serial No. 86311070 (“the ‘070 word and design application) filed on June 16,
2014, based upon Applicant’s claim of first use anywhere and use in commerce since at least
as early as January 11, 2013.
Serial Nos. 86310904, 86311070
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both for “clothing, namely, tops, bottoms, shirts, sweatshirts, jackets, dresses and
pants” in International Class 25.
The Trademark Examining Attorney has refused registration of Applicant’s
marks under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground
that Applicant’s mark so resembles the registered mark

for “hats, sweatshirts, T-shirts” in International Class 25 as to be likely to cause
confusion or mistake, or to deceive.3
After the Trademark Examining Attorney made each refusal final, Applicant
appealed to this Board. Because the cases have common issues of fact and of law, and
the records are largely identical, we will decide the two appeals in this single opinion.
See In re Pohl-Boskamp GmbH & Co., 106 USPQ2d 1042, 1043 (TTAB 2013); In re
Anderson, 101 USPQ2d 1912, 1915 (TTAB 2012). See generally TRADEMARK TRIAL
AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 1214 (2016). Where
appropriate, we have taken into account relevant factual differences in the cases. We
affirm the refusals to register.

3 Registration No. 4612829, issued on the Principal Register on September 30, 2014. The
mark consists of the stylized literal element “1776” above “UNITED,” also stylized in
antiqued script, with a disjointed snake design appearing between the literal elements.
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I. Evidentiary Issue
Before proceeding to the merits of the refusals, we address an evidentiary matter.
Applicant has attached exhibits to its main and reply briefs. With respect to the ‘904
standard character Application, it has attached:
• Pages downloaded from Registrant’s website on July 18, 2016;
• An excerpt from Wikipedia, downloaded on July 18, 2016, concerning the “join
or die” woodcut cartoon, first published in 1754, depicting a segmented snake,
similar to a design element in Registrant’s cited mark;4 and
• A Wikipedia article about world events that occurred during the year 1776.5
With respect to Applicant’s ‘070 word and design application, it has attached the
above exhibits, plus:
• A list of registrations downloaded from the USPTO’s Trademark Electronic
Search System (“TESS”) on October 10, 2016; and
• A depiction of various countries’ flags.6
As the Examining Attorney correctly observes, the record in an application should
be complete prior to the filing of an appeal. Trademark Rule 2.142(d), 37 CFR §
2.142(d). Exhibits attached to a brief that were not made of record during
examination are untimely, and generally will not be considered. Id. In re Compania
de Licores Internacionales S.A., 102 USPQ2d 1841, 1843 (TTAB 2012). See In re Fiat
Grp. Mktg. & Corp. Commc’ns S.p.A, 109 USPQ2d 1593, 1596 (TTAB 2014) (untimely

4 Applicant’s brief, 6 TTABVUE 13 et seq.
5 Applicant’s reply brief, 9 TTABVUE 9 et seq.
6 Applicant’s reply brief, 9 TTABVUE 9-44.
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evidence given no consideration); In re Pedersen, 109 USPQ2d 1185, 1188 (TTAB
2013); In re Jump Designs LLC, 80 USPQ2d 1370, 1372 (TTAB 2006). These exhibits
attached to Applicant’s briefs were not made of record during examination and will
not be considered. We hasten to note, however, that earlier, during the course of
examination, Applicant submitted pages from Registrant’s website and an article
about laurel wreaths, both of which will be considered, as they are properly of record.
II. Analysis
We base our determination of likelihood of confusion under Section 2(d) on an
analysis of all of the probative facts in evidence that are relevant to the factors
enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563,
567 (CCPA 1973) (“DuPont”) cited in B&B Hardware, Inc. v. Hargis Ind., Inc., __U.S.
__, 135 S.Ct. 1293, 113 USPQ2d 2045, 2049 (2015). See also In re Majestic Distilling
Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003).
We have considered each DuPont factor that is relevant, and have treated any
other factors as neutral. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378,
78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc.,
114 USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered each factor for
which we have evidence, we focus our analysis on those factors we find to be
relevant.”). Two key considerations are the similarities between the marks and the
similarities between the goods. See Federated Foods, Inc. v. Fort Howard Paper Co.,
544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); In re Fat Boys Water Sports LLC, 118
USPQ2d 1511, 1516 (TTAB 2016).

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A. Relatedness of the Clothing Goods, Channels of Trade, and
Classes of Customers

The second and third DuPont factors concern “the similarity or dissimilarity and
nature of the goods or services as described in an application or registration…” and
“the similarity or dissimilarity of established, likely-to-continue trade channels.”
DuPont, 177 USPQ 567.
The second DuPont factor considers whether the consuming public may perceive
the respective goods as related enough to cause confusion about their source. In re
St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1086 (Fed. Cir. 2014). To make
this determination, we compare the goods as they are identified in the applications
and the cited registration See Stone Lion Capital Partners, LP v. Lion Capital LLP,
746 F.3d 1317, 110 USPQ2d 1157, 1161-62 (Fed. Cir. 2014); Octocom Sys., Inc. v.
Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
Registrant’s identified goods are “hats, sweatshirts, T-shirts,” and Applicant’s
goods, identified in both applications, are “clothing, namely, tops, bottoms, shirts,
sweatshirts, jackets, dresses and pants.” The sweatshirts in all of the applications are
identical. Applicant’s broadly-worded “tops, and shirts” encompass Registrant’s more
narrowly-worded “T-shirts.” See, e.g., In re Hughes Furniture Indus., Inc., 114
USPQ2d 1134, 1137 (TTAB 2015) (“Applicant's broadly worded identification of
‘furniture’ necessarily encompasses Registrant's narrowly identified ‘residential and
commercial furniture.’”). Therefore, the goods are identical in part. “[I]t is sufficient
for a finding of likelihood of confusion if relatedness is established for any item
encompassed by the identification of goods within a particular class in the
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application.” In re Aquamar, Inc., 115 USPQ2d 1122, 1126n. 5 (TTAB 2015) (citing
Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986
(CCPA 1981); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB
2014)).
Even where the goods are not identical, they are highly related clothing items. See
Kangol Ltd v. KangaROOS U.S.A. Inc., 23 USPQ2d 1945, 1946 (Fed. Cir. 1992) (golf
shirts similar if not identical to athletic shirts “and it is unlikely that the ordinary
purchaser will distinguish one from the other.”). The Examining Attorney has
submitted ten use-based third-party registrations as evidence that Applicant’s
remaining identified clothing items, “jackets, dresses, bottoms and pants,” may
emanate from the same source as Registrant’s “hats, sweatshirts and T-shirts.” 7
Examples are:

Mark Registration No. Relevant Clothing Goods
LOVE YOUR IMAGE 4819083 Bottoms, hats, shorts, T-shirts, tops
FIT HUSTLE 4692379 Hats, shorts, T-shirts, tank tops
SAPPHIRE INK 4715552 Clothing for men, women and children,
namely, dresses; skirts; tops, bottoms;
blouses; hooded tops; hooded jackets;
jackets; jeans; leggings; overalls; pants;
shirts; shorts; sweat shirts; sweat pants;
sweaters; t-shirts; vests; scarves; belts
for clothing; hats
BEETLEJUICE 4863369 Clothing for men, women and children,
namely, shirts, t-shirts, sweatshirts,
tank tops, hats, caps

7 Dec. 4, 2015 Office Action pp. 5-29.
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These third-party registrations serve to suggest that the varied types of clothing
goods they list may emanate from the same source under the same mark. In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck
Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988) aff’d per curiam, 864 F.2d
149 (Fed. Cir.1988). Since the cited Registration and the subject Applications set no
restrictions on channels of trade or price points, their identified clothing goods may
be presumed to travel in the normal channels of trade—i.e., department stores and
clothing retail shops--where they would be offered to the same classes of customers
seeking articles of clothing. See Kangol v. KangaROOS U.S.A., 23 USPQ2d at 1946.
Consequently, the second and third DuPont factors weigh in favor of finding a
likelihood of confusion.
B. Comparison of the Marks

Under the first DuPont factor, we compare Applicant’s and Registrant’s marks in
their entireties, taking into account their appearance, sound, connotation and
commercial impression. DuPont, 177 USPQ at 567; Stone Lion, 110 USPQ2d at 1160;
Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” In re Davia, 110
USPQ2d 1810, 1812 (TTAB 2014). Applicant devotes its brief to disputing the
similarity of the marks, correctly noting that “The question of whether a mark sought
to be registered is not whether people will confuse the marks, but rather whether the
marks will confuse people into believing that the goods they identify emanate from
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the same source.”8 Citing In re Majestic Distilling Co., 65 USPQ2d at 1205. Here,
where the trademarks appear on substantially identical goods travelling through the
same channels of trade to the same classes of customers, the degree of similarity
needed to find that those customers are likely to be confused declines
commensurately. See Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356,
101 USPQ2d 1713, 1722 (Fed. Cir. 2012).
Sight
Applicant initially contends that Registrant’s composite mark,

is visually distinct from its ‘904 standard character mark, 1776, if one looks at
Registrant’s mark as a whole, as one must under the anti-dissection rule, taking into
account the additional literal term UNITED and the snake design.9
While the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, “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 a consideration of the marks in their
entireties.” In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985) quoted in Bond v. Taylor, 119 USPQ2d 1049, 1055 (TTAB 2016). In a
composite mark comprising a design and words, “the verbal position of the mark is
the one most likely to indicate the origin of the goods to which it is affixed.” In re

8 Applicant’s brief, 6 TTABVUE 5.
9 Applicant’s brief, 6 TTABVUE 6-7.
Serial Nos. 86310904, 86311070
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Viterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908, 1911 (Fed. Cir. 2012) (quoting
CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir 1983)). See also
Bond v. Taylor, 119 USPQ2d at 1055. Here, the central, dominant component of
Registrant’s mark is “1776,” appearing in large stylized letters. Prospective
customers encountering Registrant’s mark are likely to notice the lead term “1776”,
to remember it, and to look for it when shopping. See Palm Bay Imps., 73 USPQ2d
at 1692; Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23
USPQ2d 1698, 1700 (Fed. Cir. 1992); Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9
USPQ2d 1895, 1897 (TTAB 1988) (“[I]t is often the first part of a mark which is most
likely to be impressed upon the mind of a purchaser and remembered” when making
purchasing decisions).
That same dominant component, “1776”, forms the entirety of Applicant’s
standard character mark. Applicant maintains that likelihood of confusion does not
automatically occur where a junior user’s mark contains part of another mark: “Here,
the marks share the term 1776 in common, but the single common term and nothing
more, is not enough to support a finding of likelihood of confusion.”10 While it is true
that the incorporation of one mark into another does not dictate a finding of likelihood
of confusion, it does increase the similarity between the marks under the first DuPont
factor. See, e.g., In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257 (Fed. Cir.
2010) (applicant’s mark ML is similar to registrant’s mark ML MARK LEES); In re
Toshiba Med. Sys. Corp., 91 USPQ2d 1266 (TTAB 2009) (applicant’s mark VANTAGE

10 Applicant’s brief, 6 TTABVUE 9.
Serial Nos. 86310904, 86311070
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TITAN for medical magnetic resonance imaging diagnostic apparatus confusingly
similar to TITAN for medical ultrasound diagnostic apparatus); In re Mr. Recipe,
LLC, 118 USPQ2d 1084 (TTAB 2016) (JAWS DEVOUR YOUR HUNGER similar to
JAWS). Although Registrant’s mark contains additional word and design elements,
Applicant’s standard character mark, used on similar items of clothing, “would
appear to prospective purchasers to be a shortened form of registrant’s mark.” In re
United States Shoe Corp., 229 USPQ 707, 709 (TTAB 1985) (CAREER IMAGE for
women's clothing stores and women's clothing likely to cause confusion with CREST
CAREER IMAGES for uniforms including items of women’s clothing).
The same shortcoming befalls Applicant’s ‘070 word and design mark, .
As with Registrant’s mark, “1776”, stacked vertically, is the dominant component of
the mark. That dominant component at the very center of the mark is emphasized by
its surrounding design elements. In Applicant’s own words, “The mark consists of the
numbers ‘1776’ in the center of a circle, with leaves to the left and right of the
numbers, multiple stars above and one star below the numbers.”11 The component
“1776” is thus the mark’s centerpiece, set off by encircling design elements, which act
to focus purchasers’ attention upon it, leaving an overall impression of similarity with
Registrant’s mark:
Keeping in mind that the marks may not even be seen at the same time,
ordinary purchasers who are familiar with [Registrant’s] mark on clothing,
upon later encountering applicant’s mark on identical and/or closely
related clothing …, would not necessarily remember fine details about the
mark they had previously seen, given their hazy and imperfect recall, and

11 Description of the mark in App. Serial No. 86311070.
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they may remember the marks as being the same. Even those purchasers
who notice and remember the differences in the marks, or who are, as
applicant claims, knowledgeable about “sponsorship activities,” are likely
to believe in view of the overall similarities in the marks that [Registrant]
is licensing a slightly different version of the same mark and mistakenly
assume that applicant’s brand of clothing … is therefore sponsored by
[Registrant].

Nike, Inc. v. WNBA Ent. LLC, 85 USPQ2d 1187, 1199-1200 (TTAB 2007).
The respective marks are therefore more notable for their visual similarity than
their dissimilarity.
Sound

Since the design elements—the circle, laurel wreath and stars—in Applicant’s
‘070 mark are unpronounceable, both of Applicant’s marks would be pronounced the
same way: “Seventeen Seventy-Six”—the phonetic equivalent of the dominant
component of Registrant’s mark. See In re Davia, 110 USPQ2d at 1814. While
Registrant’s mark also includes the word “UNITED”, this word is the less distinctive
term, yielding the impression that Registrant’s mark is the longer version of the same
brand of clothing. United States Shoe Corp., 229 USPQ at 709; Nike v. WNBA, 85
USPQ2d at 1199. The marks therefore are pronounced similarly.
Connotation and Commercial Impression

Applicant asseverates that Registrant’s mark was designed “to evoke a sense of
patriotism found in our forefathers,” whereas “[t]here is no such patriotic impression
in Appellant’s marked goods.”12 Its standard character mark “1776” could refer to any
of a number of events that took place throughout the world that year, Applicant

12 Applicant’s brief, 6 TTABVUE 11; Registrant’s website, 1776United.com, November 12,
2015 Response to Office Action pp. 7-9.
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insists,13 and the two branches of leaves in its word and design mark, , “are
reminiscent of a laurel wreath which are traditionally symbols of martial victory,
crow[n]ing a successful commander during his triumph.”14
However, our determination of a mark’s likely connotation and commercial
impression are based on the perspective of the consuming public, not an applicant’s
intention. UMG Recordings, Inc. v. Mattel, Inc., 100 USPQ2d 1868, 1886 (TTAB
2011). “The proper test is ‘whether 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.” Coach Servs., 101 USPQ2d at 1721
(citation omitted). To the relevant public, American consumers, Applicant’s ‘904
mark, “1776” conveys the same commercial impression as Registrant’s mark, as it is
unmistakably the year that the Declaration of Independence was adopted.15 As the
Examining Attorney observes, “the term 1776 is imbued with patriotic meaning”;
consumers are likely to see both Applicant’s and Registrant’s marks as patriotic,

13 Applicant’s reply brief, 9 TTABVUE 7.
14 Applicant’s brief, 6 TTABVUE 11 (‘070 Application), citing Wikipedia article re laurel
wreaths, Nov. 12, 2015 Response to Office Action pp. 10-13. “[T]he Board will consider
evidence taken from Wikipedia so long as the non-offering party has an opportunity to rebut
that evidence by submitting other evidence that may call into question the accuracy of the
particular Wikipedia information. Our consideration of Wikipedia evidence is with the
recognition of the limitations inherent with Wikipedia (e.g., that anyone can edit it and
submit intentionally false or erroneous information).” In re IP Carrier Consulting Group, 84
USPQ2d 1028, 1032 (TTAB 2007).
15 “Independence Day: July 4, celebrated in the United States to commemorate the adoption
in 1776 of the Declaration of Independence.” The American Heritage Dictionary of the
English Language, CredoReference.com, Aug. 5, 2016, Examining Attorney’s brief, 8
TTABVUE 5 (‘904 Application), 8 TTABVUE 7 (‘070 Application).
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either because patriotism is expressly invoked or because it is inextricably linked to
the year 1776.16 Furthermore, Applicant’s claimed “laurel wreath” design is also
consistent with patriotism, as it represents martial victory in the Revolutionary War,
and suggests the “honor and glory won for great achievement,” 17 i.e., the achievement
of independence. Compared in their entireties, Applicant’s marks are similar to
Registrant’s, taking into account their appearance, sound, connotation and
commercial impression. The first DuPont factor therefore also weighs in favor of
finding a likelihood of confusion.
III. Conclusion
After considering all of the evidence of record and arguments pertaining to the
DuPont likelihood of confusion factors, the first, second and third DuPont factors
favor a finding of likelihood of confusion. Accordingly, we find that there is a
likelihood of confusion between Applicant’s and Registrant’s marks for the identified
goods.
Decision: The refusals to register Applicant’s mark 1776 and in
Application Serial Nos. 86310904 and 86311070 are affirmed.

16 Examining Attorney’s brief, 8 TTABVUE 7 (‘070 Application); 8 TTABVUE 3 (‘904
Application).
17 The American Heritage Dictionary of the English Language, CredoReference.com, Sept. 9,
2016, Examining Attorney’s brief, 8 TTABVUE 6n.1 (‘070 Application).