Abkit, Inc.

Trademark Trial and Appeal Board

Sep 28, 2007

No. 78739650 (T.T.A.B. Sep. 28, 2007)

Mailed:
Sept. 28, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Abkit, Inc.
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Serial No. 78739650
_______

Scott D. Woldow of Smith, Gambrell & Russell, LLP for
Abkit, Inc.

Katina S. Mister, Trademark Examining Attorney, Law Office
104 (Chris Doninger, Managing Attorney).
_______

Before Bucher, Grendel and Holtzman, Administrative
Trademark Judges.

Opinion by Grendel, Administrative Trademark Judge:

Applicant seeks registration on the Principal Register
of the mark CAMOKIDS (in standard character form) for goods
identified in the application as “cosmetics, namely, creams
and lotions for the skin and hair; non-medicated ointments
for the skin and hair; shampoos, bath and shower gel; bath
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser. No. 78739650
2
and shower gel body wash; body oils,” in Class 3, and
“antibiotic ointments; anti-itch ointments,” in Class 5.1
At issue in this appeal is the Trademark Examining
Attorney’s final refusal to register applicant’s mark on
the ground that the mark, as applied to applicant’s goods
as identified in the application, so resembles the mark
CAMO KIDS, previously registered on the Supplemental
Register (in standard character form, and with a disclaimer
of CAMO) for “children’s clothing, namely, sweatshirts,
jogging suits, jackets, pants, T-shirts, shorts, hats, caps
and jumpers” in Class 25,2 as to be likely to cause
confusion, to cause mistake, or to deceive. Trademark Act
Section 2(d), 15 U.S.C. §1052(d).
Both applicant and the Trademark Examining Attorney
have submitted briefs. Upon careful consideration of the
evidence of record and the arguments of counsel, we find
that there is no likelihood of confusion, and we therefore
reverse the refusal to register.

1 Serial No. 78739650, filed October 25, 2005. The application
is based on applicant’s asserted bona fide intention to use the
mark in commerce. Trademark Act Section 1(b), 15 U.S.C.
§1051(b).

2 Reg. No. 2239924, issued April 13, 1999. Section 8 affidavit
accepted.

Ser. No. 78739650
3
Our likelihood of confusion determination under
Section 2(d) is based on an analysis of all of the facts in
evidence that are relevant to the factors bearing on the
likelihood of confusion issue (the du Pont factors). 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 Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003); In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531 (Fed. Cir. 1997).
Initially, we note that the mark the Trademark
Examining Attorney has cited as a Section 2(d) bar to
registration of applicant’s mark is registered on the
Supplemental Register, with a disclaimer of CAMO. A mark
registered on the Supplemental Register may be cited as a
Section 2(d) bar to the registration of an applicant’s
mark. See In re The Clorox Co., 578 F.2d 305, 198 USPQ 337
(CCPA 1978); In re Hunke & Jochheim, 185 USPQ 188 (TTAB
1975). However, marks registered on the Supplemental
Register are presumed to have been (at least as of the time
of registration) merely descriptive at a minimum, and they
therefore are deserving of a lesser scope of protection
than arbitrary or suggestive marks registered on the
Ser. No. 78739650
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Principal Register. Id. A mark registered on the
Supplemental Register normally will be a Section 2(d) bar
to registration of an applicant’s mark only where the
respective marks are substantially identical and the
respective goods are substantially similar. In re Hunke &
Jochheim, supra.
Keeping these principles in mind, we turn to the first
du Pont factor, which requires us to determine the
similarity or dissimilarity of the marks when viewed in
their entireties in terms of appearance, sound, connotation
and overall commercial impression. Palm Bay Imports, Inc.,
supra. We find that applicant’s mark CAMOKIDS and the
cited registered mark CAMO KIDS are similar in terms of
appearance, differing only in that the registered mark is
displayed as two words while applicant’s mark is displayed
as one word. We also find that the respective marks are
identical in terms of sound.
In terms of connotation, we find the respective marks
to be somewhat similar. In both marks, CAMO would be
understood by purchasers to be short for “camouflage.”
Applicant argues that CAMO in its mark would be understood
by purchasers as referring to or short for “chamomile,”
which applicant asserts is a key ingredient in applicant’s
personal care products. However, there is no evidence that
Ser. No. 78739650
5
CAMO is or would be recognized as being short for
“chamomile.” Because CAMO in both marks would be perceived
as being short for “camouflage,” we find that, in their
entireties, both marks have the connotation of “camouflage
kids” or “camouflage for kids” or “kids wearing
camouflage.”
In terms of overall commercial impression, we find
that the respective marks are dissimilar. The registered
mark CAMO KIDS, as applied to the clothing items identified
in the registration, immediately and obviously creates the
commercial impression of camouflage clothing for kids, or
of kids wearing camouflage clothing. No such commercial
impression results from the use of CAMOKIDS in connection
with applicant’s personal care products. As applied to
such products, CAMOKIDS or “camouflage kids” is incongruous
if not completely non-sensical. Personal care products are
not “camouflaged.”
On balance, we find that although the respective marks
are similar in terms of appearance, sound and connotation,
those points of similarity are greatly outweighed by the
dissimilarity in the overall commercial impressions of the
marks as applied to the respective goods. The marks in
their entireties are dissimilar, and the first du Pont
factor weighs against a finding of likelihood of confusion.
Ser. No. 78739650
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The second du Pont factor requires us to determine the
similarity or dissimilarity of the goods as recited in the
application and in the cited registration. The respective
goods obviously are dissimilar in nature. However, the
Trademark Examining Attorney has submitted a number of
third-party use-based registrations which include in their
identifications of goods both clothing items like
registrant’s and personal care products like applicant’s.
Although such registrations are not evidence that the marks
shown therein are in use or that the public is familiar
with them, they nonetheless have probative value to the
extent that they serve to suggest that the goods listed
therein are of a kind which may emanate from a single
source under a single mark. See In re Albert Trostel &
Sons Co., 29 USPQ2d 1783 (TTAB 1993); and In re Mucky Duck
Mustard Co. Inc., 6 USPQ2d 1467 (TTAB 1988). The Trademark
Examining Attorney also has submitted printouts of several
third-party websites which display both types of goods for
sale by a single source.
Based on this third-party registration and website
evidence, we conclude that although applicant’s goods and
the goods identified in the cited registration are
dissimilar in nature, they are somewhat related for
Ser. No. 78739650
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purposes of the second du Pont factor. That factor weighs
in favor of a finding of likelihood of confusion.
Under the third du Pont factor, we find that
applicant’s goods and registrant’s goods are or would be
marketed in the same trade channels and to the same classes
of purchasers. There are no restrictions or limitations in
the respective identifications of goods, so we must presume
that the goods are marketed in all normal trade channels
for such goods and to all normal classes of purchasers for
such goods. The third du Pont factor weighs in favor of a
finding of likelihood of confusion.
Weighing all of the evidence of record as it pertains
to the relevant du Pont factors, we conclude that there is
no likelihood of confusion. The marks are dissimilar when
viewed in their entireties and as applied to the respective
goods. The goods themselves, albeit somewhat commercially
related, are different in nature. The cumulative
differences in the marks and goods weigh against a finding
of likelihood of confusion. Especially when we keep in
mind the lessened scope of protection to be afforded weak
marks registered on the Supplemental Register, we find that
any likelihood of confusion which might exist is
insufficient to warrant refusal of applicant’s mark.
Decision: The refusal to register is reversed.