The Greens/Green Party USAv.Green Party of the United States

Trademark Trial and Appeal Board

Jun 11, 2010

No. 91178037 (T.T.A.B. Jun. 11, 2010)

Mailed: June 11, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

The Greens/Green Party USA
v.
Green Party of the United States
_____

Opposition No. 91178037
_____

Henry B. Robertson, Esq., for The Greens/Green Party USA.

Ronald W. Citkowski of Gifford, Krass, Sprinkle, Anderson,
et. al., for Green Party of the United States.
_____

Before Walters, Holtzman, and Ritchie, Administrative
Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:

On February 25, 2005, applicant, Green Party of the
United States, applied to register the mark GREEN PARTY OF
THE UNITED STATES for “political party services, namely,
promoting the interests and political agenda of
environmentalists; promoting public awareness of the need
for environmental protection and social justice,” in
International Class 35.1

1 Serial No. 78575215, claiming dates of first use and first use
in commerce of July 28, 2001. The application includes a claim,
under Section 2(f) of the Trademark Act, of acquired
THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Opposition No. 91178037
2
On June 20, 2007, opposer, The Greens/Green Party USA,
opposed the registration of applicant’s mark on the ground
that applicant’s mark is likely to cause confusion with
opposer’s mark, THE GREENS/GREEN PARTY USA.2 Opposer
asserted that it has priority of use of its mark, and that
registration of applicant’s mark would present a likelihood
of confusion. Opposer also alleged ownership of Trademark
Application Serial No. 78585919, the prosecution of which
has been suspended pending the outcome of the application
herein.
Applicant’s answer denied the salient allegations of
the Notice. Both parties filed briefs.
The Record
The record consists of the pleadings; the file of the
involved application; and opposer’s Notice of Reliance on
excerpts from printed publications. Applicant did not
submit any testimony or evidence, but submitted what it
referred to as a "Notice of Reliance" stating that it was
relying on the application file and noting objections as to
the relevance of various documents in opposer’s Notice of

distinctiveness, and a disclaimer of the exclusive right to use
the term “PARTY” apart from the mark as shown.
2 Opposer also pleaded a claim of deceptiveness under Section
2(a) of the Trademark Act. However, it did not pursue this claim
and, accordingly, we deem it to be waived. Thus, we have
considered only the pleaded and tried claim of priority and
likelihood of confusion.
Opposition No. 91178037
3
Reliance.3 Applicant has not explained how, or established
that, the documents submitted as part of opposer’s Notice of
Reliance are irrelevant. Therefore, we overrule applicant’s
objections and we have considered the documents and accorded
them whatever probative value they merit.
Standing
Standing is a threshold issue that must be proven in
every inter partes case. See Lipton Industries, Inc. v.
Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA
1982) ("The facts regarding standing . . . must be
affirmatively proved. Accordingly, [plaintiff] is not
entitled to standing solely because of the allegations in
its [pleading]."). To establish standing in an opposition,
opposer must show both “a real interest in the proceedings
as well as a ‘reasonable’ basis for his belief of damage.”
See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025
(Fed. Cir. 1999). As discussed below, applicant has
conceded opposer’s priority with regard to political party
services in connection with the mark THE GREENS/GREEN PARTY

3 Even without a notice of reliance, applicant may rely on any
evidence submitted during prosecution of its application. See
The Cold War Museum, Inc. v. Cold War Air Museum, Inc., 586 F3d
1352, 92 USPQ2d 1626, 1629 (“The unambiguous language of 37
C.F.R. § 2.122(b) provides that the entire file of the
registration at issue is automatically part of the record,
without any action necessary by the parties. Therefore, the
evidence of the mark’s acquired distinctiveness submitted during
prosecution was automatically part of the record before the
Board”).
Opposition No. 91178037
4
USA. Accordingly, we deem applicant to have conceded
opposer’s standing to bring this action.
PRIORITY
Opposer has not pleaded a registered trademark.
Accordingly, to establish its priority, opposer must
establish its ownership and prior use, under common law, of
a distinctive, inherently or otherwise, mark in connection
with its pleaded political party services. See Giersch v.
Scripps, 90 USPQ2d 1020, 1023 (TTAB 2009); Otto Roth & Co.
v. Universal Foods Corp., 640 F.2d 1317, 209 USPQ 40 (CCPA
1981). Applicant has not questioned the inherent
distinctiveness of opposer’s mark. See The Chicago Corp. v.
North American Chicago Corp., 20 USPQ2d 1715 (TTAB 1991).
See also Wetseal Inc. v. FD Management Inc., 82 USPQ2d 1629
(TTAB 2007) (absent argument or evidence from applicant,
opposer’s mark deemed distinctive). Similarly, applicant
has not questioned whether the services in connection with
which opposer uses its mark are political party services.
In fact, the record establishes that opposer and applicant
were at one time part of the same organization rendering the
same political party services. Further in this regard,
opposer has submitted numerous news articles referring to
opposer as a political party. Accordingly, we deem opposer
to have established common law rights to the inherently
Opposition No. 91178037
5
distinctive mark THE GREENS/GREEN PARTY USA for “political
party services.”
In its brief, applicant makes the following statement:
Applicant notes for the record that Opposer has
asserted that there is an issue as to whether The
Greens/Green Party USA has established a prior
right to what it refers to as “the name.” In this
regard, Opposer presents evidence establishing
that it has called itself ‘The Greens/Green Party
USA’ since 1991. Applicant does not contest this
fact and the sole issue regarding Applicant’s
right to register its mark is the likelihood of
confusion with regard to Opposer’s name.
(Applicant’s brief at 1) (emphasis added).

This is clearly an admission by applicant of
opposer’s priority of use of the pleaded mark THE
GREENS/GREEN PARTY USA. Moreover, opposer has
established its use of its mark since at least prior to
any date of first use that applicant may claim.
Therefore, opposer’s priority is established.

Likelihood of Confusion
Our determination under Section 2(d) is based on an
analysis of all of the factors relevant to a likelihood of
confusion. See In re E. I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563 (CCPA 1973). See also Palm Bay
Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201 (Fed. Cir. 2003); and In re Dixie Restaurants Inc., 105
F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). In any
Opposition No. 91178037
6
likelihood of confusion analysis, two key considerations are
the similarities between the marks and the similarities
between the goods or services. See Federated Foods, Inc. v.
Fort Howard Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976)
(“The fundamental inquiry mandated by §2(d) goes to the
cumulative effect of differences in the essential
characteristics of the goods and differences in the marks”).
The Services, Channels of Trade, and Classes of Purchasers
Applicant seeks to register the mark GREEN PARTY OF THE
UNITED STATES for “political party services, namely,
promoting the interests and political agenda of
environmentalists; promoting public awareness of the need
for environmental protection and social justice.” These
services are legally identical to the “political party
services” in connection with which opposer uses its mark.
Neither the services identified in the application nor
the evidence of opposer’s use of its mark in connection with
its services indicate any limitations on trade channels or
classes of purchasers. Thus, because the services are
identical, the channels of trade and classes of purchasers
of the parties’ services are also the same.
These du Pont factors heavily favor finding a
likelihood of confusion.
Opposition No. 91178037
7
The Marks
We consider and compare the appearance, sound,
connotation and commercial impression of the marks in their
entireties. Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1692 (Fed. Cir. 2005). Preliminarily, we note that
the more similar the goods or services at issue, and in this
case the services are identical, the less similar the marks
need to be for the Board to find a likelihood of confusion.
Century 21 Real Estate Corp. v. Century Life of America, 970
F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992). In comparing the
marks, we are mindful that the test 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 impression so
that confusion as to the source of the goods offered under
the respective marks is likely to result. San Fernando
Electric Mfg. Co. v. JFD Electronics Components Corp., 565
F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc.
v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff'd
unpublished, No. 92-1086 (Fed. Cir. June 5, 1992). The
proper focus is on the recollection of the average customer,
who retains a general rather than specific impression of the
marks. Winnebago Industries, Inc. v. Oliver & Winston,
Opposition No. 91178037
8
Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
Opposer’s mark is THE GREENS/GREEN PARTY USA.
Applicant’s mark is GREEN PARTY OF THE UNITED STATES. Both
share the term “Green Party.” In opposer’s, mark, the term
“Green Party” is followed by the term “USA.” It is hardly
necessary, but, nonetheless, we take judicial notice of the
obvious fact that “USA” is an abbreviation of “United States
of America,” and that this is synonymous with the term
“UNITED STATES.” In applicant’s mark, the term “Green
Party” is followed by the phrase “Of The United States.” We
find that the connotations of “Green Party USA” and “Green
Party Of The United States” are, thus, the same.4
Nor does the fact that, in opposer’s mark, the term
“Green Party” is preceded by the term “The Greens”
distinguish the marks. Rather, “The Greens” is likely to be
perceived as a shortened version of “Green Party,” and it is
likely to be perceived as placing the emphasis, or focus, on
the term “Green Party.”

4 We note, in this regard, that applicant objected in its brief
to opposer’s discussion of the issue of “likelihood of confusion”
as to the shortened version of opposer’s mark, GREEN PARTY USA,
since the full pleaded mark is THE GREENS/GREEN PARTY USA.
However, as discussed in this section, we consider the marks in
their entireties as well as their dominant elements. Since
opposer has not actually attempted to base its claim of
likelihood of confusion on GREEN PARTY USA as a separate mark but
has merely discussed this element in the context of its pleaded
mark as a whole, applicant’s objection is not well taken.
Opposition No. 91178037
9
Accordingly, we find that, when considered in their
entireties, the marks share more similarities than
differences and provide substantially similar commercial
impressions. This du Pont factor also favors finding a
likelihood of consumer confusion.
Balancing the Factors
Considering all of the evidence of record as it
pertains to the du Pont factors, we conclude that the
services are legally identical and, thus, are marketed
through the same channels of trade to the same classes of
purchasers; and that the marks are substantially similar.
Accordingly, we find a likelihood of consumer confusion
between opposer’s pleaded mark THE GREENS/GREEN PARTY USA
for “political party services” and applicant’s
mark GREEN PARTY USA for “political party services, namely,
promoting the interests and political agenda of
environmentalists; promoting public awareness of the need
for environmental protection and social justice.”
DECISION: The opposition is sustained.