Chillers Clothing Corporation

Trademark Trial and Appeal Board

Feb 14, 2008

No. 78741042 (T.T.A.B. Feb. 14, 2008)

Mailed:
February 14, 2008
AZ

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Chillers Clothing Corporation
________

Serial No. 78741042
_______

John M. Kim, Esq. for Chillers Clothing Corporation.

Michael G. Lewis, Trademark Examining Attorney, Law Office
111 (Craig D. Taylor, Managing Attorney).
_______

Before Walters, Zervas and Walsh, Administrative Trademark
Judges.

Opinion by Zervas, Administrative Trademark Judge:

On October 26, 2005, Chillers Clothing Corporation
filed an application (Serial No. 78741042) to register the
mark

THIS OPINION IS
NOT A PRECEDENT
OF THE T.T.A.B.
Ser No. 78741042
2
on the Principal Register for goods ultimately identified
as, “Dress shirts; Jackets; Jeans; Pants; Short-sleeved or
long-sleeved t-shirts; Shorts; Sweat shirts; T-shirts” in
International Class 25. Applicant claims first use
anywhere and first use in commerce on September 12, 2005
and has entered the following description of the mark into
the application record; “The mark consists of the word
‘CHILLERS’ with a man laying on top of the letters.”
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), in view of
(i) Registration No. 2991647 for the mark
URBANCHILLERS (in typed form) issued on September
6, 2005 to Urbanchillers Films Limited for goods
and services including “Clothing, namely, T-
shirts, sweatshirts, jackets, vests and scarves;
footwear; headgear, namely, hats[,] caps and
berets” in International Class 25; and

(ii) Registration No. 3011442 for the mark AUSSIE
CHILLER (in typed form) for “hats” issued on
November 1, 2005 to Gary Stauffenberg; registrant
has disclaimed the term AUSSIE.

The examining attorney also finally refused registration of
applicant’s mark in view of Registration No. 2432656 issued
to INDICAL Manufacturing, Inc. for the mark CHILLER
BANDANNA (in typed form) for “[b]andannas impregnated with
heat-stressed-reducing chemicals in [the] nature of water-
absorbent polymer crystals.” On December 8, 2007, however,
the Office cancelled the CHILLER BANDANNA registration
Ser No. 78741042
3
under Section 8 of the Trademark Act. The refusal to
register in view of Registration No. 2432656 is therefore
moot.
Applicant has appealed the final refusal of its
application. Both applicant and the examining attorney
have filed briefs. As discussed below, the refusal to
register is affirmed.
We first consider one evidentiary matter. Applicant
has submitted, for the first time with its brief, a second
webpage from aussiechiller.com, a dictionary definition of
“urban legend” from m-w.com and a webpage from
urbanchillers.com. Trademark Rule 2.142(d), 37 C.F.R.
§ 2.142(d) provides that the record should be complete
prior to the filing of a notice of appeal. However,
because the examining attorney has not objected to this
evidence, we have considered this evidence as part of the
record.
Our determination of the examining attorney's refusal
to register the mark under Section 2(d) of the Trademark
Act 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. See In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also, In
re Majestic Distilling Company, Inc., 315 F.3d 1311, 65
Ser No. 78741042
4
USPQ2d 1201 (Fed. Cir. 2003). In any likelihood of
confusion analysis, two key considerations are the
similarities between the marks and the similarities between
the goods and/or services. See Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA
1976). See also, In re Dixie Restaurants Inc., 105 F.3d
1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
Considering first the du Pont factor regarding the
similarity or dissimilarity of applicant's and registrants’
goods, we find that applicant's goods are identical in part
to several of the goods in the URBANCHILLERS registration.
Specifically, both the application and the registration for
URBANCHILLERS include t-shirts, sweatshirts and jackets.
As for the remaining goods in the application, i.e.,
dress shirts, jackets, jeans, pants and shorts, we find
them to be similar to the goods in both the URBANCHILLERS
and AUSSIE CHILLER registrations. The examining attorney
has made several third-party use-based registrations of
record listing the following clothing items; (i) shirts,
jackets, pants and/or or shorts, and (ii) t-shirts,
sweatshirts, caps and/or hats. These registrations suggest
that the same entity is likely to be the source of such
clothing items. In re Infinity Broadcasting Corp. of
Dallas, 60 USPQ2d 1214, 1217-18 (TTAB 2001) (“The
Ser No. 78741042
5
registrations show that entities have registered their
marks for both television and radio broadcasting services.
Although these registrations are not evidence that the
marks shown therein are in use or that the public is
familiar with them, they nevertheless have probative value
to the extent that they serve to suggest that the services
listed therein, including television and radio
broadcasting, are of a kind which may emanate from a single
source. See, e.g., In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard
Co. Inc., 6 USPQ2d 1467, 1470 at n. 6 (TTAB 1988)”).
In view of the foregoing, we resolve the du Pont
factor regarding the similarity or dissimilarity of
applicant's and registrants’ goods against applicant.
With regard to the trade channels of the goods,
applicant maintains that its goods “will not be marketed in
the same fashion, sold in the same stores or sold to the
same type of consumers” as registrants’ goods. For the
URBANCHILLERS registration, applicant maintains that
because the registrant is an entertainment company,
registrant “obviously sells or gives away clothing as
promotional materials,” and does so “only through stores
that sell entertainment merchandise or online at the
registrant’s website.” Brief at unnumbered pp. 5 and 9.
Ser No. 78741042
6
Applicant's arguments are not well taken; a determination
of the issue of likelihood of confusion between the
applied-for and registered marks must be made on the basis
of the goods as they are identified in the involved
application and registration. Because there are no
limitations in the identifications, we must presume that
the “registration[s] encompasses all goods of the nature
and type described, [and] that the identified goods move in
all channels of trade that would be normal for such goods,”
In re Elbaum, 211 USPQ 639, 640 (TTAB 1981), and that
applicant's goods would move in the same trade channels as
registrants’ goods and be sold in the same outlets as
registrants’ goods. We also find that applicant's and
registrants’ clothing items would be sold to the same
purchasers, i.e., members of the general public. The du
Pont factors regarding trade channels and classes of
consumers are also resolved against applicant for both
marks.
We next turn to the du Pont factor regarding 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.
v. Veuve Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689
(Fed. Cir. 2005). The test, under this du Pont factor, is
Ser No. 78741042
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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 that confusion as to the source of
the goods offered under the respective marks is likely to
result. The focus is on the recollection of the average
purchaser, who normally retains a general rather than a
specific impression of trademarks. See Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975). Also, although
the marks at issue must be considered in their entireties,
it is well settled that one feature of a mark may be more
significant than another, and it is not improper to give
more weight to this dominant feature in determining the
commercial impression created by the mark. See In re
Chatam International Inc., 380 F.3d 1340, 71 USPQ2d 1944
(Fed. Cir. 2004); In re National Data Corp., 753 F.2d 1056,
224 USPQ 749 (Fed. Cir. 1985).
Applicant's mark consists of the word CHILLERS in
stylized letters underneath a character wearing a baseball
cap backwards and a pair of sunglasses, lying down on a
portion of the word CHILLERS with his arms behind his head
and with his legs crossed. Because (i) the word CHILLERS
forms the literal portion of applicant's mark, and it is
the literal portion of the mark that will be used by
Ser No. 78741042
8
purchasers in recalling the marks and purchasing the goods,
see In re Appetito Provisions Co., Inc., 3 USPQ2d 1553
(TTAB 1987), and (ii) CHILLERS is much larger in size than
the character and forms a greater visual impression on the
purchaser, we find that the word CHILLERS, and not the
design element, is the dominant portion of applicant's
mark.
AUSSIE CHILLER
According to applicant, CHILLER in the AUSSIE CHILLER
mark is not the dominant term in registrant’s mark because
CHILLER is a descriptive term. Applicant argues that
registrant’s hats are “Australian style ventilated hats
that serve to cool or ‘chill’ the user’s head,” as
demonstrated by the webpages from aussiechiller.com which
promote the cooling aspects of registrant’s hats. Brief at
unnumbered p. 3. The webpages promote the goods as being
“like an ICE-COLD towel” and “uniquely allows ventilation
but blocks the sun!” Applicant does not argue that AUSSIE
is not descriptive; rather it argues that the entire mark
is descriptive and should not have been registered.
We do not agree with applicant's arguments. First,
applicant's contention that the entire mark is descriptive
constitutes an impermissible collateral attack on the cited
registration. Such an attack will not be entertained in an
Ser No. 78741042
9
ex parte appeal. See, e.g., In re Peebles Inc., 23 USPQ2d
1795 (TTAB 1992); In re C. F. Hathaway Co., 190 USPQ 343
(TTAB 1976). Thus, the mark as a whole cannot properly be
considered descriptive. Second, AUSSIE has been
disclaimed, and disclaimed matter is often “less
significant in creating the mark's commercial impression.”
In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB
2001). Third, the evidence of record does not support the
contention that CHILLER in AUSSIE CHILLER is descriptive.
The definition of “chiller” from m-w.com is “one that
chills,” which appears to restrict the term to a person
rather than a thing, and the only evidence of use of
“chiller” in connection with hats is the single webpage
from registrant’s own website, aussiechiller.com. Rather,
we agree with the examining attorney that CHILLER is at
most suggestive and that it is the dominant term in the
mark AUSSIE CHILLER.
While the marks in their entireties have obvious
differences in appearance and sound due to the inclusion of
AUSSIE in registrant’s mark, these differences are not as
significant as the similarities in appearance and sound
created by the common dominant term CHILLER(S).1 As far as

1 The addition of the letter “S” in applicant's mark is
inconsequential to our analysis.
Ser No. 78741042
10
the connotation of the marks, applicant argues that AUSSIE
CHILLER “connotes an ‘Australian’ or ‘Aussie’ style hat
that is used to ‘cool down’ or ‘chill’ the head” and that
applicant's mark “connotes the slang word ‘to chill’, which
means to relax or to be laid back. It connotes the laid
back, casual and relaxed lifestyle of Southern California
where surfers, skateboarders and other people simply
‘chill.’” Brief at unnumbered p. 6. One connotation of
CHILLERS in applicant’s mark is certainly likely to be “to
relax or be laid back” in view of the character who is in
repose in applicant's mark. However, this same connotation
of CHILLER could be applied equally to registrant’s mark
which encompasses hats of the type worn by the character in
applicant's mark, i.e., a baseball cap. We find too that
the overall commercial impressions of the marks are very
similar because CHILLER and CHILLERS are the dominant terms
in the respective marks and because the connotation of
CHILLERS in the respective marks is likely to be the same.
Hence, we resolve the du Pont factor regarding the
similarity of the marks with regard to the cited
registration of the AUSSIE CHILLER mark against applicant.
URBANCHILLERS
As noted earlier in this decision, some of applicant’s
goods are identical to some of the goods identified in the
Ser No. 78741042
11
URBANCHILLERS registration. The degree of similarity
between the marks which is required to support a finding of
likelihood of confusion therefore is less than it would be
if the goods were not identical. Century 21 Real Estate
Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d
1698 (Fed. Cir. 1992).
When we compare URBANCHILLERS with applicant's mark,
we find that the marks are similar in sound, appearance,
meaning, and commercial impression. The presence of
CHILLERS in both marks creates similarities in sound and
appearance between the marks. As far as the meaning of the
marks, applicant has argued that the connotation of
CHILLERS in URBANCHILLERS is different from that of
CHILLERS in registrant’s mark. We are not persuaded that
there is a difference in the meaning of CHILLER(S) in the
marks, for example, CHILLERS in URBANCHILLERS may also
refer to those who relax, but in the context of an urban
environment. Thus, applicant’s CHILLERS mark, even with
the design element, is likely to be perceived as
identifying a distinct line of registrant’s URBANCHILLERS
clothing.
We hence conclude that although there are differences
in the marks, when the marks are considered as a whole, the
similarities in sound, appearance, meaning and commercial
Ser No. 78741042
12
impression due to the identical term CHILLERS in each mark
outweigh any differences and that the marks are more
similar than dissimilar when considered in their
entireties. We resolve the du Pont factor regarding the
similarity of the marks with regard to the cited
registration for the URBANCHILLERS mark against applicant.
We add too that we are not persuaded otherwise by
applicant's reliance on In re Hearst Corp., 25 USPQ2d 1238
(Fed. Cir. 1992) and applicant’s contention that in
considering the similarities or dissimilarities of the
respective marks, the marks have been improperly dissected.
We have properly considered the component parts of the
respective marks, providing the appropriate weight to these
components in each mark, and then reached our conclusion
based on consideration of the marks in their entireties.
The Federal Circuit has recognized that (i) differing
weight may be given to differing components, see National
Data Corp., 224 USPQ at 751 (“[t]hat a particular feature
is descriptive … with respect to the involved goods … is
one commonly accepted rationale for giving less weight to a
portion of a mark”); and (ii) that the weight to be given
terms in a mark is “not entirely free of subjectivity.”
Hearst, 25 USPQ2d at 1239.
Ser No. 78741042
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Upon consideration of the relevant du Pont factors
discussed above, as well as the evidence of record and the
arguments of the examining attorney and applicant, we
conclude that when purchasers who are familiar with
registrants’ marks for their respective identified goods
encounter applicant's mark on identical or related goods,
they are likely to be confused as to source. The fact that
AUSSIE CHILLER, URBANCHILLERS and CHILLER BANDANNA (now
cancelled) have coexisted on the Principal Register does
not persuade us that there is no likelihood of confusion in
this case. Not only must each case be decided on its own
merits, but each of these registrations may be
distinguished from the other in view of the additional
wording in each mark, whereas applicant’s mark is the
single word CHILLERS without any additional wording.
Decision: The refusal to register under Section 2(d)
of the Trademark Act in view of Registration Nos. 2991647
and 3011442 is affirmed.