The Game Tracker, Inc.

Trademark Trial and Appeal Board

Sep 30, 2003

No. 76208127 (T.T.A.B. Sep. 30, 2003)

Mailed:
September 30, 2003
Paper No. 12
Bucher
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re The Game Tracker, Inc.
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Serial No. 76/208,127
_______
William D. Blackman of Carrier Blackman & Associates for
The Game Tracker, Inc.
William H. Dawe, III, Trademark Examining Attorney, Law
Office 108 (David Shallant, Managing Attorney).
_______
Before Walters, Chapman and Bucher, Administrative
Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
The Game Tracker, Inc. seeks registration on the
Principal Register for the mark RIVERBOTTOM for goods
identified as “archery arrows having a distinctive
camouflage pattern imprinted thereon, and collapsible
enclosures having a distinctive camouflage pattern
imprinted thereon, namely hunting blinds,” in International
Class 28.1
1 Application Serial No. 76/208,127 was filed on February 12,
2001, based upon applicant’s allegation of use in commerce at
least as early as November 2000. Although the application as
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial No. 76/208,127
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This case is now before the Board on appeal from the
final refusal to register based upon Section 2(d) of the
Trademark Act, 15 U.S.C. §1052(d). The Trademark Examining
Attorney has held that applicant’s mark, when used in
connection with the identified goods, so resembles the mark
RIVER BOTTOMS, which is registered for “stencil kit for
use in connection with camouflage painting of hunting
equipment,” in International Class 16,2 as to be likely to
cause confusion, to cause mistake or to deceive.
Applicant and the Trademark Examining Attorney have
fully briefed this appeal but applicant did not request an
oral hearing.
We affirm the refusal to register.
Applicant contends that its mark creates a different
commercial impression; that consumers would never confuse
stencil kits with its arrows and hunting blinds; and that
it is not even clear that registrant actually has any
products on the market.
In turn, the Trademark Examining Attorney argues that
the marks are highly similar as to overall commercial
impression; and that the record demonstrates that hunting
filed also contained goods in International Class 25, this class
of goods was subsequently abandoned by applicant.
2 Registration No. 2,325,584, issued on March 7, 2000.
Serial No. 76/208,127
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supply retailers sell goods of the type sold by registrant
and by applicant.
Our determination under Section 2(d) is based upon an
analysis of all of the facts in evidence that are relevant
to the factors bearing on the issue of likelihood of
confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). In any likelihood of
confusion analysis, two key considerations are the
similarities between the marks and the relationship of the
goods. Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24 (CCPA 1976).
Turning first to a consideration of the relatedness of
the respective goods, it is well settled that goods need not
be identical or even competitive in nature in order to
support a finding of likelihood of confusion. Instead, it
is sufficient that the goods are related in some manner
and/or that the circumstances surrounding their marketing
are such that they would be likely to be encountered by the
same persons under situations that would give rise, because
of the marks employed in connection therewith, to the
mistaken belief that they originate from or are in some way
associated with the same entity or provider. See Monsanto
Co. v. Enviro-Chem Corp., 199 USPQ 590, 595-96 (TTAB 1978)
and In re International Telephone & Telegraph Corp., 197
USPQ 910, 911 (TTAB 1978).
Serial No. 76/208,127
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Despite applicant’s arguments that these respective
goods are easily differentiated, we concur with the
position of the Trademark Examining Attorney that
applicant’s “archery arrows having a distinctive camouflage
pattern imprinted thereon, and collapsible enclosures
having a distinctive camouflage pattern imprinted thereon,
namely hunting blinds,” and registrant’s goods identified
as “stencil kit for use in connection with camouflage
painting of hunting equipment,” are so closely related in a
commercial sense that, if rendered under similar marks,
confusion as to their origin or affiliation would be
likely.
Beyond the apparent logical connection between these
goods as identified, the Trademark Examining Attorney has
placed into the record printouts from various websites
demonstrating a close relationship between these respective
goods. For example, on the Hunter’s Friend bow hunting
website, http://www.huntersfriend.com/, alphabetically
listed product categories list “Arrows” and “Blinds” right
before “Camouflage.” Then when the Trademark Examining
Attorney followed this “camouflage gear” link, the featured
camouflage spray paint kit expressly included stencils.
Similarly, the Hunter’s Specialties Network website at
http://www.hunterspec.com touts its “camo paint” as good
Serial No. 76/208,127
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for painting bows and blinds, and its “Permanent Camo Spray
Paint Kit” comes complete with “leaf stencils.” A number
of other advertisements and stories retrieved from the
LEXIS/NEXIS database placed into the record by the
Trademark Examining Attorney demonstrate the complementary
nature of camouflage painting kits to hunting blinds and
archery equipment.
In speaking to this particular du Pont factor,
applicant makes much of the fact that the goods are in
entirely different classes of goods, and then argues as
follows:
Stencils are generally flat and are very
different from arrows and hunting blinds.
The consumer is certainly not going to
confuse stencils with arrows or with hunting
blinds.
(Applicant’s appeal brief, p. 4). However, the question we
must decide is not whether consumers are likely to confuse
the products, but whether they are likely to confuse the
source of the products. The evidence shows that these are
complementary goods that move in the same channels of
trade. Both types of products, as identified, place the
same emphasis on camouflaging hunters. Moreover, the mere
fact that applicant’s arrows and blinds are classified in
one class while registrant’s camouflage painting stencils
are in a different class does not mean that such confusion
Serial No. 76/208,127
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is not likely to result. The classification system is for
the convenience of the U.S. Patent and Trademark Office,
and does not serve as evidence for or against the
relatedness of goods or services. See National Football
League v. Jasper Alliance Corp., 16 USPQ2d 1212, 1216 n. 5
(TTAB 1990).
We turn next to the du Pont factor focusing on the
similarity or dissimilarity of the marks in their
entireties as to appearance, sound and connotation.
Applicant contends that registrant’s RIVER BOTTOMS mark
and its RIVERBOTTOM mark are different in all three
respects, while the Trademark Examining Attorney finds them
virtually identical as to appearance, sound and
connotation.
The differences between the registered mark and
applicant’s mark are fairly straightforward. Applicant’s
RIVERBOTTOM mark is in the singular form while registrant’s
mark is in the plural form. Moreover, applicant’s mark, as
shown on the typed drawing of the application papers, has
no space between the words as does registrant’s RIVER
BOTTOMS mark.
As to overall appearance, we find the absence of a
space in applicant’s mark provides for a negligible
Serial No. 76/208,127
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difference in appearance. Moreover, as noted by the
Trademark Examining Attorney, the specimens show that
applicant actually uses this mark in a special form logo
having a representation of an oak leaf between the words
RIVER and BOTTOM:
Similarly, when it is used in text, it is shown as
RiverBottom. Hence, in actual practice, applicant
eliminates any visual differences with the registered mark
growing out of the absence of a space between the words
“River” and “Bottom” as shown in the application drawing.
The only other arguable difference in the marks is
applicant’s use of the singular form, which we find
insignificant in terms of the likelihood of confusion of
purchasers. See Wilson v. Delaunay, 245 F.2d 877, 114 USPQ
339, 342 (CCPA 1957) [“There is no material difference in
the trademark sense between the singular and plural form of
the word ZOMBIE and they will therefore be regarded as the
same mark”]; and In re Pix of America, Inc., 225 USPQ 691
(TTAB 1985).
As to any aural difference associated with
registrant’s pluralization, this difference on the end of
the fourth and final syllable of these marks is so
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insignificant that it cannot be viewed as a serious
distinction between these two marks.
As to connotation, when used in connection with
camouflage gear for hunters, we find that the terms RIVER
BOTTOMS and RIVERBOTTOM will both suggest essentially the
same idea to prospective purchasers. One likely
connotation of these terms is the suggestion that the
coloration may “… resemble the appearance of leaves, sticks
and other things that might be found … at the bottom of a …
river.” (Applicant’s brief, p. 4). Hence, we find that
these marks, whether found to be arbitrary or suggestive
when used with the goods identified herein, will convey
very similar meanings.
In view of the foregoing, we conclude that purchasers
and prospective customers, familiar with the registered
mark RIVER BOTTOMS for camouflage painting stencil kits,
would be likely to believe, upon encountering the highly
similar mark RIVERBOTTOM for camouflaged arrows and blinds,
that such closely related goods emanate from or are
associated with the same source.
Finally, applicant argues that it is unclear whether
or not registrant “has any goods actually on the market”
(Applicant’s brief, p. 4) or is “actually selling any
commercial products.” (Applicant’s brief, p. 5). However,
Serial No. 76/208,127
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in the context of an ex parte appeal, applicant’s argument
that registrant may not be using his mark in connection
with the identified products is simply not relevant. If
applicant believes that registrant is not using the RIVER
BOTTOMS mark, it is incumbent upon applicant to file a
petition to cancel the cited registration on the ground of
abandonment, if appropriate. Otherwise, the fact that
applicant’s counsel could not locate registrant’s cited
mark in conjunction with any products through an Internet
search is not particularly probative of whether there is a
likelihood of confusion among consumers in the marketplace.
Decision: The refusal to register under Section 2(d)
of the Trademark Act is hereby affirmed.