RealKidz Inc.

Trademark Trial and Appeal Board

Jun 9, 2010

No. 77398544 (T.T.A.B. Jun. 9, 2010)

Oral Hearing: Mailed:
April 7, 2010 June 9, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re RealKidz Inc.
________

Serial No. 77398503
Serial No. 77398544
_______

John G. Posa of Gifford, Krass, Sprinkle, Anderson & Citkowski,
P.C. for RealKidz Inc.

Benjamin U. Okeke, Trademark Examining Attorney, Law Office 112
(Angela B. Wilson, Managing Attorney).
_______

Before Bucher, Holtzman and Zervas, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

Applicant, RealKidz Inc., has filed applications to register
the marks shown below:
and
THIS OPINION IS
NOT A PRECEDENT OF
THE TTAB
Serial Nos. 77398503 and 77398544
2
for Serial Nos. 77398503 and 77398544 respectively.
The goods are identified in both applications as "clothing,
namely skirts, pants, tops, dresses and everyday wear, namely
denim jeans and sweatsuits," in Class 25.
The applications were filed on February 15, 2008, alleging
first use and first use in commerce on August 15, 2007. They
both include a disclaimer of the word CLOTHING; a statement that
"color is not claimed as a feature of the mark"; and a
description of the mark as including "an 8-pointed star."
The trademark examining attorney has refused registration
under Section 2(d) of the Trademark Act in each application on
the ground that applicant's marks, when applied to applicant's
goods, so resemble the mark FOR REAL KIDS in typed form for
"bras, panties, tops, camisoles, shorts, sleepshirts, pajamas,
gowns, robes, slippers, leggings, slips, chemises, underwear,
tank tops, pantaloons, lingerie," in Class 25, as to be likely to
cause confusion.1 The word KIDS is disclaimed in the
registration.
When the refusal was made final, applicant appealed. Briefs
have been filed, and an oral hearing was held. Because the
issues in both cases are similar, the appeals are hereby
consolidated, and we decide them in this single opinion.

1 Registration No. 1980488; issued June 18, 1996; renewed.

Serial Nos. 77398503 and 77398544
3
Our determination under Section 2(d) is based on an analysis
of all of the probative facts in evidence that are relevant to
the factors bearing on the likelihood of confusion issue. In re
E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). In any likelihood of confusion analysis, however, two key
considerations are the similarities or dissimilarities between
the marks and the similarities or dissimilarities between the
goods or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
Turning first to a consideration of the goods, we note that
registrant's "tops" and "tank tops" are identical or legally
identical to the "tops" identified in the two applications. The
respective goods are otherwise closely related articles of
clothing. To demonstrate the relatedness of the goods, the
examining attorney submitted a number of use-based, third-party
registrations for marks covering, in each instance, one or more
of the clothing items listed in both the applications and the
cited registration. For example, Reg. No. 3291662 for the mark
FRAULEIN lists dresses, skirts and pants, as well as camisoles,
pajamas, shorts, panties and bras; Reg. No. 3551843 for the mark
DENIM DESTROYER ("Denim" disclaimed) lists skirts, pants, dresses
and jeans, as well as camisoles, sleepwear, lingerie and
underwear; Reg. No. 3545168 for the mark KILLER CALI ("Cali"
disclaimed) lists dresses, jeans, skirts, dresses and sweatsuits,
Serial Nos. 77398503 and 77398544
4
as well as lingerie, pajamas, panties, shorts and underwear; Reg.
No. 3545188 for the mark DRAMATEEN lists skirts, dresses, pants
and sweatsuits, as well as shorts, panties and leggings; Reg. No.
3555489 for the mark KILIMANJARO lists dresses, jeans, pants and
skirts, as well as pajamas, lingerie, robes, shorts and
undergarments. Although third-party registrations which are
based on use are not evidence that the marks shown therein are in
use or that the public is familiar with them, they nevertheless
have some probative value in that they serve to suggest that the
goods listed therein may emanate from a single source. See In re
Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993);
In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467 (TTAB 1988).
Because there are no restrictions in either the applications
or the cited registration, we must assume that these identical
and closely related goods are sold in at least some of the same
channels of trade, to at least some of the same purchasers.
Genesco Inc. v. Martz, 66 USPQ2d 1260 (TTAB 2003); Interstate
Brands Corp. v. McKee Foods Corp., 53 USPQ2d 1910 (TTAB 2000).
Furthermore, purchasers of ordinary, everyday wearing apparel
such as tops, shorts and pants would not be expected to exercise
a high degree of care in their purchasing decisions and thus
would be more prone to confusion. See Kimberly-Clark Corp. v.
H. Douglas Enter., Ltd., 774 F.2d 1144, 227 USPQ 541 (Fed. Cir.
Serial Nos. 77398503 and 77398544
5
1985); Specialty Brands, Inc. v. Coffee Bean Distributors, Inc.,
748 F.2d 669, 223 USPQ 1281 (Fed. Cir. 1984).
It is clear that if these identical and closely related
goods are offered under similar marks there would be a likelihood
of confusion.
We turn then to a comparison of registrant's mark FOR REAL
KIDS with applicant's marks REAL KIDZ CLOTHING and REALKIDZ
CLOTHING, both with designs. We determine the similarity or
dissimilarity of the marks in their entireties in terms of sound,
appearance, meaning and commercial impression. See du Pont,
177 USPQ at 567. See also Palm Bay Imports, Inc. v. Veuve
Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir.
2005). In making this determination, we keep in mind that the
more similar the goods, and here they are in part identical and
otherwise very closely related, the less similarity in the marks
is required to support a finding of likelihood of confusion. See
Century 21 Real Estate v. Century Life, 970 F.2d 874, 23 USPQ2d
1698 (Fed. Cir. 1992).
The test under this du Pont factor is not whether the marks
can be distinguished when subjected to a side-by-side comparison,
but rather whether the marks are sufficiently similar in terms of
their overall commercial impressions that confusion as to the
source of the goods offered under the respective marks is likely
to result. The focus is on the recollection of the average
Serial Nos. 77398503 and 77398544
6
purchaser, who normally retains a general, rather than a
specific, impression of trademarks. See Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975).
In addition, while marks must be compared 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 consideration of the marks in their entireties." In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985).
When applicant's and registrant's marks are considered in
their entireties, giving appropriate weight to the features
thereof, and considering that the marks are used on identical and
otherwise closely related goods, we find that the marks are
similar in sound, meaning and commercial impression, and that the
similarities between the marks outweigh their differences.
The marks are substantially similar in sound. The
phonetically identical terms REAL KIDS and REAL KIDZ (REALKIDZ)
are essential elements of both registrant's and applicant's
marks. The only additional word in applicant's marks is the term
CLOTHING which has been disclaimed by applicant and is generic
for the goods. While this term is not ignored in the analysis,
it is far less important than REAL KIDZ (or REALKIDZ) in creating
an impression. See In re National Data Corp., 224 USPQ at 751
Serial Nos. 77398503 and 77398544
7
("That a particular feature is descriptive or generic with
respect to the involved goods or services is one commonly
accepted rationale for giving less weight to a portion of a
mark"). The word FOR in registrant's mark is merely a
preposition with no particular significance except as a lead-in
to REAL KIDS. It is not a significant addition to the overall
sound of the mark.2
The marks are also highly similar in meaning. Registrant's
mark FOR REAL KIDS suggests the users or wearers of its clothing.
While applicant's mark could perhaps suggest a type of clothing,
it could also be viewed, just as registrant's mark, as suggesting
clothing to be worn or used by REAL KIDZ.
There are clearly differences in appearance between
registrant's mark FOR REAL KIDS in typed form and applicant's
marks REAL KIDZ CLOTHING and REALKIDZ CLOTHING with designs.
Applicant's marks include the word CLOTHING, a slight misspelling
of KIDS as "KIDZ" and a display of REALKIDZ as a single term in
the '544 application. However, these differences are not so
significant that they are likely to be noted or remembered by

2 In response to the examining attorney's argument regarding the
similarity in sound if the marks are heard over the radio, applicant
argues that there is no evidence that either applicant or registrant
advertises on the radio. We presume that applicant's and registrant's
clothing will be advertised in all the usual media for such goods,
including radio, but, in any event, the relevant point is that the
marks must be evaluated in terms of their sound, apart from any
accompanying visual cues.
Serial Nos. 77398503 and 77398544
8
purchasers when seeing the marks at separate times on identical
and closely related goods.
Applicant's marks also include design elements that are not
present in registrant's mark. The mark in the '503 application
features the words "real" and "kidz" in bold, lower case letters
displayed on separate lines. The word "clothing" is lined up
below "kidz" in smaller lettering. What appears to be an
asterisk or flower design (or an "8-pointed star" as described by
applicant) is enclosed in a circle and it forms the center of the
letter "a" in "real" as well as the dot over the "i" in "kidz."
However, the wording REAL KIDZ is clearly the predominant visual
element of this mark. Even in the '544 application, where the
asterisk or flower design is much larger and is the focal point
of the mark, the wording REALKIDZ CLOTHING is still a visually
significant, if not predominant, part of the mark.
Furthermore, it has frequently been stated that it is the
word portion of a composite word and design mark that is likely
to have a greater impact on purchasers and be remembered by them.
See CBS, Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed.
Cir. 1983) ("in a composite mark comprising a design and words,
the verbal portion of the mark is the one most likely to indicate
the origin of the goods to which it is affixed"). This portion
of applicant's marks is accorded greater weight because
purchasers will rely on the words, REAL KIDZ CLOTHING (REALKIDZ
Serial Nos. 77398503 and 77398544
9
CLOTHING) rather than the designs, in calling for or referring to
applicant's clothing. See In re Appetito Provisions Co., 3
USPQ2d 1553, 1554 (TTAB 1987).
In addition, the cited mark FOR REAL KIDS is registered in
typed form, and we must consider all reasonable manners in which
registrant could depict its mark. See Phillips Petroleum v. C.J.
Webb, 442 F.2d 1376, 170 USPQ 35, 36 (CCPA 1971). See also
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842,
1847-48 (Fed. Cir. 2000) (typed drawings are not limited to any
particular rendition of the mark). Registrant could reasonably
depict its mark in a wide variety of typefaces or fonts,
including a display very similar to the stylized format of the
wording in the '504 application thereby increasing the visual
similarity of these marks.3
Because FOR REAL KIDS is registrant's entire mark, and the
highly similar terms REAL KIDZ CLOTHING and REALKIDZ CLOTHING are
essential components of applicant's marks, we find that the marks
as a whole create similar commercial impressions. While there
are differences between the marks in appearance, the differences
do not change the commercial impression conveyed by the word
portions of the marks in any significant way. Even those

3 Contrary to the examining attorney's contention, however, rights in
the typed mark FOR REAL KIDS would not extend to include protection for
those words combined with a design element. See Fossil Inc. v. Fossil
Group, 49 USPQ2d 1451 (TTAB 1998); In re Pollio Dairy Products Corp.,
Inc., 8 USPQ2d 2012 (TTAB 1988).
Serial Nos. 77398503 and 77398544
10
purchasers who are aware of the specific differences between the
marks are likely to believe, because of the similarities between
them, that the marks are simply different variations, perhaps
more or less elaborate versions, of each other.
Applicant's reliance on In re Electrolyte Labs, Inc., 929
F.2d 645, 16 USPQ2d 1239 (Fed. Cir. 1990) to support its
contention that the marks are dissimilar is misplaced. That case
involved composite "letter" marks which, as the Court in
Electrolyte noted, can be close to design marks and therefore may
or may not be vocalized. While applicant's marks include design
elements, the marks are not, as applicant claims, "design marks."
Here, we are dealing with composite marks that feature clearly
identifiable and pronounceable words.
Applicant has also relied heavily on the non-precedential
decision in In re Coralie Downing and Keri Caffrey (Serial No.
78603930, TTAB November 21, 2007) finding no likelihood of
confusion between BOBbies (and bicycle design) for jewelry and
cyclists' clothing, and BOBBY'S for department store services.
Suffice it to say that the facts in that case differ markedly
from those herein, and they do not compel a finding that the
marks in this case are distinguishable. It is well settled that
the Board must decide each case on its own merits. In re Nett
Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir.
2001).
Serial Nos. 77398503 and 77398544
11
In view of the foregoing, and because similar marks are used
in connection with identical and closely related goods, we find
that confusion is likely.
Decision: The refusal to register under Section 2(d) as to
both applications is affirmed.