Anaconda Sports, Inc.

Trademark Trial and Appeal Board

May 22, 2001

No. 75198280 (T.T.A.B. May. 22, 2001)

5/22/01
Paper No. 15
PTH
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Anaconda Sports, Inc.
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Serial No. 75/198,280
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Jeffrey L. Costellia of Nixon Peabody LLP for Anaconda
Sports, Inc.
Patricia L. Judd, Trademark Examining Attorney, Law Office
108 (David E. Shallant, Managing Attorney).
_______
Before Cissel, Hohein and Hairston, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
An application has been filed by Anaconda Sports, Inc.
to register the mark ANACONDA SPORTS and design as shown
below,
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/198,280
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for “athletic clothing for athletes, officials and coaches,
namely team uniforms, hats, caps, shoes, socks, gloves,
belts, headbands, jackets, warm-up suits, sweat shirts,
sweat pants, sweaters, vests, parkas, ponchos, t-shirts,
golf shirts, sport shirts, running shorts, swim shorts,
sliding shorts, baseball shorts and softball shorts.”1
Registration has been finally refused under Section 2(d) of
the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant’s mark, when applied to its goods, so resembles
the mark ANACONDA FOUNDATION, which is registered for “T-
shirts; shirts; tops; bottoms; hats; footwear; shoes;
aprons; bandannas; headwear; swimwear; bathrobes; beach
coverups [sic]; beach wear; clothing belts; cloth bibs;
blazers; blouses; boas; body suits; body shapers; boleros;
bonnets; booties; boots; underwear; capes; cardigans;
coats; collars; masquerade costumes and masks; coverups
[sic]; coveralls; cravats; clothing ties; cuffs;
cummerbunds [sic]; dresses; gowns; ear muffs; espadrilles;
vests; frocks; gauchos; gloves; shorts; head bands;
hosiery; infantwear; jackets; jeans; jogging suits;
jumpsuits; kerchiefs; kilts; kimonos; knickers; lingerie;
1 Serial No. 75/198,280; filed November 6, 1996; alleging dates
of first use of March 15, 1993. The word “SPORTS” has been
disclaimed apart from the mark as shown.
Ser No. 75/198,280
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jumpers; pants; mantillas; mittens; moccasins; muu muus;
neckwear; overalls; pantsuits; parkas; play suits; ponchos;
pullovers; rainwear; robes; sandals; sleepwear; smocks,
suits; suspenders; sweat suits; sweaters; tops; trousers;
slacks; tunics; turbans; visors; veils; scarfs [sic]; and
wrist bands,”2 as to be likely to cause confusion, mistake
or deception.
Applicant has appealed. Briefs have been filed, but
an oral hearing was not requested. We affirm the refusal
to register.
We turn first to a consideration of the respective
goods. It is well settled that the issue of likelihood of
confusion must be resolved on the basis of the goods as
they are broadly stated in the respective application and
registration. Since there is no limitation in registrant’s
identification of goods, we must presume that registrant’s
clothing items move in all channels of trade normal for
such goods, and that the goods would be purchased by all
potential customers. In re Elbaum, 211 USPQ 630, 640 (TTAB
1981). Thus, for purposes of our likelihood of confusion
analysis, certain of registrant’s goods are identical (i.e.
T-shirts; hats; headbands; shorts; shoes; and sweaters) or
otherwise closely related (i.e. jogging suits; sweat suits;
2 Registration No. 2,061,622 issued May 13, 1997.
Ser No. 75/198,280
4
and wrist bands) to applicant’s goods. In other words, we
must presume that such clothing items are for athletes,
officials and coaches, and are sold in the some of the same
outlets as applicant’s goods.3
Turning next to a consideration of the marks, we begin
our analysis of whether confusion is likely by keeping in
mind two propositions set forth by the Court of Appeals for
the Federal Circuit. First, “when marks would appear on
virtually identical goods or services, the degree of
similarity necessary to support a conclusion of likely
confusion declines.” Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ 1698, 1700
(Fed. Cir. 1992). Second, in articulating reasons for
reaching a conclusion on the issue of likelihood of
confusion, 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
3 We should point out that if some of the goods covered by the
cited mark support a finding of likelihood of confusion with
respect to the goods in the involved application, even though
other non-related or more remotely related goods are also covered
by the cited mark, the prohibitions of Section 2(d) of the
Trademark Act apply and will bar registration without the need to
rule on the other goods covered by the cited mark. See Shunk
Manufacturing Co. v. Tarrant Manufacturing Co., 137 USPQ 881, 318
F.2d 328 (CCPA 1963).
Ser No. 75/198,280
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entireties.” In re National Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985).
In comparing applicant’s mark ANACONDA SPORTS and
design with registrant’s mark ANACONDA FOUNDATION, we find
the commercial impressions engendered by the marks to be
sufficiently similar that, when the marks are used in
connection with the same and/or closely related goods,
consumers are likely to be confused. In the present case,
applicant’s mark is dominated by the word ANACONDA which is
very similar to registrant’s mark ANACONDA FOUNDATION.
Applicant has disclaimed exclusive rights to use SPORTS,
thereby acknowledging the descriptiveness of the word.
Further, although the snake design is a noticeable part of
applicant’s mark, it is insufficient to distinguish the
marks because it reinforces the connotation of the word
ANACONDA. In finding that the marks are similar, we have
kept in mind the normal fallibility of human memory over
time and the fact that the average consumer retains a
general rather than a specific impression of trademarks
encountered in the marketplace.
In sum, we conclude that consumers familiar with
registrant’s mark ANACONDA FOUNDATION for T-shirts; hats;
headbands; shorts; shoes; sweaters; jogging suits; sweat
suits; and wrist bands, would be likely to believe, upon
Ser No. 75/198,280
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encountering applicant’s mark ANACONDA SPORTS and design
for identical and otherwise closely related clothing items,
that such goods originated with or were somehow associated
with or sponsored by the same entity.
Finally, it is well settled that, if there is any
doubt on the issue of likelihood of confusion, that doubt
must be resolved against the newcomer and in favor of the
prior registrant. In re Hyper Shoppes (Ohio), Inc., 837
F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1986).
Decision: The refusal to register is affirmed.
Ser No. 75/198,280
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