Clairtex Corp.

Trademark Trial and Appeal Board

Dec 19, 2000

No. 75456352 (T.T.A.B. Dec. 19, 2000)

12/19/00
Paper No. 11
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Clairtex Corporation
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Serial No. 75/456,352
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Bernard Malina of Malina & Wolson for Clairtex Corporation.
Scott M. Oslick, Trademark Examining Attorney, Law Office
108 (David Shallant, Managing Attorney).
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Before Seeherman, Wendel and Rogers, Administrative
Trademark Judges.
Opinion by Seeherman, Administrative Trademark Judge:
Clairtex Corporation has appealed from the final
refusal of the Trademark Examining Attorney to register BLR
as a trademark for “slacks, trousers, shirts, blouses,
dresses, shorts, sweaters, tops, underpants, bras, socks,
suits, hats and bathing suits.”1 Registration has been
refused pursuant to Section 2(d) of the Trademark Act, 15
U.S.C. 1052(d), on the ground that applicant’s mark so
1 Application Serial No. 75/456,352, filed March 25, 1998, and
asserting a bona fide intention to use the mark in commerce.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/456,352
2
resembles the mark shown below, (with NYC disclaimed) and
registered for scarves, wraps, capes and pocket squares2
that, if used on applicant’s identified goods, would be
likely to cause confusion or mistake or to deceive.
The appeal has been fully briefed; an oral hearing was
not requested.3
In determining whether there is a likelihood of
confusion between two marks, we must consider all relevant
factors as set forth in In re E.I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In any
likelihood of confusion analysis under Section 2(d), two of
the most important considerations are the similarities or
dissimilarities between the marks and the similarities or
dissimilarities between the goods. Federated Foods, Inc.
v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976).
2 Registration No. 1,879,864, issued February 21, 1995.
3 In its appeal brief applicant indicated that it would be
requesting an oral hearing by separate notice, as required by
Trademark Rule 2.142(e)(1), but no such request was ever
received.
Ser. No. 75/456,352
3
In this case, we find that the marks are sufficiently
different that, even if they were used on related goods,
confusion would not be likely. See Kellogg Co. v. Pack’em
Enterprises Inc., 951 F.2d 330, 21 USPQ2d 1142, 1145 (Fed.
Cir. 1991) (“We know of no reason why, in a particular
case, a single duPont factor may not be dispositive”).
There is a dispute about the commercial impression of
the cited mark. The Examining Attorney contends that it is
for the letters B L-R, written above the letters NYC.
There is no disagreement that NYC, which is disclaimed, is
a reference to New York City. The Examining Attorney
asserts that the preceding line is for the initials B L R,
noting that registrant’s name is Bernardo Laniado-Romero.
Although this may well be the derivation of the mark, we
must determination the issue of likelihood of confusion
based on how consumers will view the mark, not on the
intention of the registrant. Nor does the fact that Office
personnel described the mark as “BL-R NYC” in the Office’s
X-search records establish that consumers will perceive the
mark in this way. In this case, there is nothing in the
record that would indicate that consumers would understand
the registrant’s mark to be his initials. For example,
there is no evidence that the registrant uses the mark in
conjunction with his name, or that his name appears on his
Ser. No. 75/456,352
4
products, such that consumers would make a connection
between the mark and the initials BLR.
As a result, we agree with applicant that, rather than
the letters B L-R, the mark is more likely to be viewed as
the number “3” followed by “L-R.” Although the “L” and “R”
and “NYC” in the mark are depicted in relatively normal
“handwritten” capital letters, the first element is shown
in such a different script that consumers would not readily
perceive it to be a “B.” Accordingly, the commercial
impression of the registrant’s mark is far different from
that of the letters or initials BLR.
We recognize that applicant has depicted its mark in a
typed drawing, and therefore the protection it seeks is not
limited to a specific form. See Phillips Petroleum Co. v.
C. J. Webb, Inc., 442 F.2d 1376, 170 USPQ 35 (CCPA 1971).
However, because an application depicts a mark in typed
capital letters, this does not mean that the mark must be
considered to encompass all possible forms, no matter how
extensively stylized. Rather, when a drawing in an
application depicts a mark in typed capital letters, we
must, in deciding the issue of likelihood of confusion,
consider all reasonable manners in which the mark could be
depicted. See Jockey International Inc. v. Mallory &
Ser. No. 75/456,352
5
Church Corp., 25 USPQ2d 1233 (TTAB 1992) and cases cited
therein.
In this case, it is not reasonable to consider
applicant’s mark BLR to encompass a stylization similar to
that in the cited registration, where the first element
looks far more like the numeral “3” than it does like the
letter “B.”
Decision: The refusal of registration is reversed.