Ardisam, Inc.

Trademark Trial and Appeal Board

Feb 24, 2003

No. 76095756 (T.T.A.B. Feb. 24, 2003)

Mailed: February 24, 2003
Paper No. 10
PTH
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Ardisam, Inc.
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Serial No. 76/095,756
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Richard John Bartz of Bartz & Bartz, P.A. for Ardisam, Inc.
Susan C. Hayash, Trademark Examining Attorney, Law Office
110 (Chris A. F. Pedersen, Managing Attorney).
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Before Hohein, Hairston and Rogers, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
An application has been filed by Ardisam, Inc. to
register BIG FOOT as a trademark for “deer hunting
equipment, namely, deer hunter’s stands, portable tree
stands, back rests, arm pads, foot rests, adjustable seat
and platform, combined seat and foot rest, non-motorized
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 76/095,756
2
deer carts, combined non-motorized deer cart and ladder
stand, ladder shooting rails and tree climbing sticks.”1
The Trademark Examining Attorney has refused
registration under Section 2(d) of the Trademark Act, 15
U.S.C. §1052(d), on the ground that applicant’s mark, as
used in connection with the identified goods, is likely to
cause confusion or mistake or to deceive consumers, in view
of the prior registration of the mark BIG FOOT for “wild-
fowl decoys.”2
When the refusal was made final, applicant appealed.
Both applicant and the Examining Attorney have filed
briefs,3 but an oral hearing was not requested.
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. See In re E. I. du Pont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). In the
analysis of likelihood of confusion presented by this case,
1 Serial No. 76/095,756, filed July 24, 2000, alleging first use
and first use in commerce as of January 1, 1996.
2 Registration No. 2,043,643, issued March 11, 1997; affidavits
under Section 8 and 15 accepted and acknowledged, respectively.
3 Applicant, for the first time with its appeal brief, submitted
material downloaded from the Internet concerning the
“Bigfoot/Sasquatch” mystery. This material is clearly untimely,
see Trademark Rule 2.142(d), and has not been considered.
Ser No. 76/095,756
3
two key considerations are the identity of the marks and
the similarities of the goods. Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976).
Applicant’s mark BIG FOOT is identical in every
respect to the mark BIG FOOT shown in the cited
registration. “This fact weighs heavily against
applicant.” In re Martin’s Famous Pastry Shoppe, Inc., 748
F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984). The Board
has stated in the past that “[i]f the marks are the same or
almost so, it is only necessary that there be a viable
relationship between the goods or services in order to
support a likelihood of confusion.” In re Concordia
International Forwarding Corp., 222 USPQ 355, 356 (TTAB
1983).
We turn, then, to a consideration of applicant’s and
registrant’s respective goods. The Examining Attorney
argues that the goods are related because “[d]eer hunting
equipment and wild-fowl decoys are all employed in the
sport of hunting game.” According to the Examining
Attorney, “[a]lthough deer hunting equipment and wild-fowl
decoys are designed for hunting different types of game,
they are still used for the greater purpose of hunting.”
(Brief, p. 6). In addition, the Examining Attorney
Ser No. 76/095,756
4
maintains that the respective goods move in the same
channels of trade. In support of the refusal to register,
the Examining Attorney submitted copies of five use-based
third-party registrations for marks which cover hunting
stands or hunting blinds, on the one hand, and decoys, on
the other hand.4 In addition, the Examining Attorney
submitted Internet evidence which shows that several on-
line sporting goods retailers offer both deer hunting
equipment and duck hunting equipment.
Applicant, in urging reversal of the refusal to
register, argues that the goods are not related because
they are used in different seasons and for different
purposes. According to applicant, its goods are marketed
only to deer hunters, and would be used only in deer
hunting season, whereas registrant’s decoys are marketed to
hunters of fowl and/or upland birds and fishermen.
It is, of course, well settled that goods or services
need not be identical or even competitive in order to
support a finding of likelihood of confusion. Rather, it
is sufficient that the goods or services are related in
4 We judicially notice that “blind” is defined in Webster’s New
Collegiate Dictionary (1979) as: “a place of concealment; esp: a.
a concealing enclosure from which one may shoot game or observe
wildlife.”
Ser No. 76/095,756
5
some manner or that the circumstances surrounding their
marketing are such that they would be likely to be
encountered by the same persons in situations that would
give rise, because of the marks used thereon, to a mistaken
belief that they originate from or are in some way
associated with the same producer or that there is an
association between the producers of the goods or services.
See In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991); and
In re International Telephone & Telegraph Corp., 197 USPQ
910 (TTAB 1978).
Also, it has been repeatedly held that, when
evaluating the issue of likelihood of confusion in Board
proceedings regarding the registrability of marks, the
Board is constrained to compare the goods and/or services
as identified in the application with the goods and/or
services as identified in the registration. See Octocom
Systems Inc. v. Houston Computer Services Inc., 918 F.2d
937, 16 USPQ2d 1783 (Fed. Cir. 1990); and Canadian Imperial
Bank of Commerce, National Association v. Wells Fargo Bank,
811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987).
In this case, we agree with the Examining Attorney
that applicant’s deer hunting equipment and registrant’s
wild-fowl decoys are sufficiently related that, when
marketed under the identical mark, confusion is likely. As
Ser No. 76/095,756
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pointed out by the Examining Attorney, both applicant’s and
registrant’s goods are used for hunting. Applicant’s
argument that the respective goods are marketed to
different purchasers is not persuasive, because there is no
evidence that game and fowl hunters are distinct classes of
purchasers. In other words, there is nothing in this
record that would indicate that deer hunters are not also
fowl hunters. Thus, we must assume that there are persons
who hunt both game and fowl. And if, as applicant argues,
deer hunting season and duck/goose hunting season are
different, a hunter would not have to choose between one
type of hunting and the other, but rather could simply hunt
what is “in season.” In short, we believe it is reasonable
to conclude that there are persons who hunt both deer, on
the one hand, and duck and/or goose, on the other hand.
Further, in the absence of any restrictions with respect to
the channels of trade in applicant’s application and the
cited registration, we must assume that the respective
goods travel in all of the normal channels of trade, which
would include sporting goods retailers and stores that
specialize in hunting equipment and supplies.
In addition, although the third-party registrations
submitted by the Examining Attorney are not evidence that
the marks shown therein are in commercial use, or that the
Ser No. 76/095,756
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public is familiar with them, they nevertheless suggest
that hunting stands/blinds and wild-fowl decoys may emanate
from a single source under a single mark. See In re Albert
Trostel & Sons, 29 USPQ2d 1783 (TTAB 1993).
In view of the foregoing, we conclude that purchasers
familiar with registrant’s BIG FOOT wild-fowl decoys would
be likely to believe, upon encountering applicant’s
identical BIG FOOT mark for deer hunting equipment, that
the respective goods emanate from or are associated with or
sponsored by the same source. In particular, purchasers
may believe that registrant has expanded its product line
and is now marketing deer hunting equipment.
Two additional arguments made by applicant require
comment. Applicant argues that marks containing or
consisting of the term BIG FOOT are weak marks which are
entitled to only a limited scope of protection. In this
regard, applicant submitted with its response to the first
Office action, a list of BIG FOOT marks taken from the
PTO’s TESS database, with their corresponding registration
and/or application numbers. This type of list is not the
proper way to make registrations or applications of record;
and the Board does not take judicial notice of
registrations or applications residing at the PTO. See In
re Duofold Inc., 184 USPQ 638, 640 (TTAB 1974). However,
Ser No. 76/095,756
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the Examining Attorney who was handling the application at
that time did not object to this material so that applicant
could correct its submission. Therefore, we have
considered the list to be properly of record. We note,
however, that many of the marks in the list are “dead”
(i.e., the registrations have either expired or otherwise
been cancelled and the applications have been abandoned);
also there is no indication of the particular goods and/or
services covered by the marks. Thus, the list is of no
probative value and fails to establish that registrant’s
BIG FOOT mark as used in connection with wild-fowl decoys
is a weak mark. Even assuming that applicant’s BIG FOOT
mark is somehow suggestive of certain of applicant’s goods
(i.e., foot rests and combined seat and foot rest), there
is nothing to indicate BIG FOOT is less than arbitrary when
used for wild-fowl decoys and, therefore, registrant’s mark
must be considered a strong mark entitled to the full scope
of protection.
Finally, applicant asserts that it and the registrant
have used their marks concurrently without any evidence of
actual confusion, and that this shows that confusion is not
likely to occur. We are not persuaded by this argument.
Applicant has not provided any evidence as to the extent of
its use, nor is there any evidence as to the registrant’s
Ser No. 76/095,756
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use, such that we can determine whether there has been an
opportunity for confusion to occur. Nor have we any
information as to whether the registrant has encountered
any confusion.
Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed.