Good Sports, Inc.

Trademark Trial and Appeal Board

Oct 9, 2009

No. 77200140 (T.T.A.B. Oct. 9, 2009)

Mailed: October 9, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Good Sports, Inc.
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Serial No. 77200140
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Mario G. Ceste of Law Offices of Mario G. Ceste LLC for
Good Sports, Inc.

Karen K. Bush, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney).
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Before Hairston, Cataldo and Taylor, Administrative
Trademark Judges.

Opinion by Hairston, Administrative Trademark Judge:

Good Sports, Inc. filed an application to register the
mark LIVE FREE RIDE FREE (standard character form) for
“clothing, namely, motorcycle tee shirts, sweat shirts,
hooded sweats, tank-tops, sleeveless shirts, hats, caps,
underwear, jackets, bandanas, gloves” in International
Class 25.1

1 Application Serial No. 77200140, filed June 7, 2007, alleging a
date of first use anywhere on April 11, 2006, and a date of first
use in commerce on August 1, 2006.
THIS OPINION IS NOT A
PRECEDENT OF
THE TTAB
Serial No. 77200140
2
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act, 15 U.S.C.
§1052(d), on the ground that applicant’s mark, when used on
applicant’s goods, so resembles the previously registered
mark LIVE FREE AND RIDE for “retail stores featuring
motorcycles, motorcycle accessories, motorcycle parts, and
clothing,”2 as to be likely to cause confusion.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs. We
affirm the refusal.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E.I. du Pont de Nemours and Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.
Cir. 2003). In any likelihood of confusion analysis, two
key, although not exclusive, 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).

2 Registration No. 3297331, issued September 25, 2007.

Serial No. 77200140
3
Turning first to the marks, we must compare
applicant’s mark LIVE FREE RIDE FREE with registrant’s
cited mark LIVE FREE AND RIDE in terms of appearance,
sound, meaning and commercial impression. See Palm Bay
Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). In
comparing the marks, the test is 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 and/or
services 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).
Although there are specific differences between
applicant’s mark LIVE FREE RIDE FREE and registrant’s mark
LIVE FREE AND RIDE, we find that, on balance, the
similarities outweigh the differences.
In comparing the marks, we first note that LIVE FREE
is the first portion of applicant’s mark and the
registrant’s mark. It is “a matter of some importance
since it is often the first part of a mark which is most
Serial No. 77200140
4
likely to be impressed upon the mind of a purchaser and
remembered.” Presto Products, Inc. v. Nice-Pak Products,
Inc., 9 USPQ2d 1895, 1897 (TTAB 1988). The remaining
portions of the marks, i.e., RIDE FREE and AND RIDE, are
slightly different, but nonetheless include the identical
word RIDE. We find that when the marks are considered in
their entireties, they are similar in appearance and sound.
We also find that applicant’s mark LIVE FREE RIDE FREE
and registrant’s mark LIVE FREE AND RIDE, when viewed in
their entireties, have very similar connotations. The
marks are in the nature of slogans that convey the very
same message in the context of the respective goods and
services, both perhaps exhorting consumers to live and ride
according to their own beliefs.
Further, when applicant’s mark and registrant’s mark
are considered in their entireties, they engender
sufficiently similar commercial impressions so that, if
similar or related goods and services are offered
thereunder, confusion would be likely to result among
consumers.
Applicant, in contending that the marks are not
confusingly similar, asserts that the phrase “live free” is
so widely used that the commonality of the term is an
insufficient basis upon which to find that the marks are
Serial No. 77200140
5
confusingly similar. In support of this contention,
applicant points to the cited registration and Registration
No. 3079293 for the mark LIVE FREE, GOLF FREE for golf
shirts, and golf caps; and the results of a Google search
of “live free” which shows 2,190,000 hits, along with brief
excerpts of the first nine hits.
Third-party registrations are not evidence of use of
the marks shown therein in the marketplace and thus have
little probative value. AMF Inc. v. American Leisure
Products, Inc., 474 F.2d 1403, 177 USPA 268 (CCPA 1973).
While third-party registrations may be relevant to show
that a mark is descriptive, suggestive, or has a commonly
understood meaning such that the public will look to other
elements to distinguish the source of the goods or
services, Specialty Brands, Inc. v. Coffee Bean
Distributors, Inc., 748 F.2d 669, 223 USPQ 1281 (Fed. Cir.
1984), this record, consisting of the cited registration
and another registration clearly does not establish that
the phrase LIVE FREE has some meaning in the field of
clothing and retail store services featuring motorcycle
products and clothing. We note in addition that the mark
in Registration No. 3079293 contains the term GOLF in place
of the term RIDE and also connotes the game of golf, and
thus is less similar to the mark in either of the involved
Serial No. 77200140
6
application or cited registration and, further, identifies
less similar, golf related, goods.
Furthermore, search result summaries are generally too
truncated to provide sufficient evidence about the use of a
particular term or phrase. In re Fitch IBCA, Inc., 64
USPQ2d 1058 (TTAB 2002) [search result summaries are of
limited probative value]. In this case, the search result
summary includes six hits that appear to refer to the movie
“Live Free or Die Hard;” two hits that appear to refer to
the state motto of New Hampshire, namely, “Live Free or
Die;” and the remaining hit is unclear.
We cannot conclude that there is such significant
third-party use of LIVE FREE marks or trade names that
consumers are likely to make a distinction between
applicant’s mark and registrant’s mark when these marks are
used in connection with related goods and services.
We next turn to the du Pont factor regarding the
similarity or dissimilarity of the involved goods and
services. This factor concerns a comparison of applicant’s
clothing, namely, motorcycle tee shirts, sweat shirts,
hooded sweats, tank-tops, sleeveless shirts, hats, caps,
underwear, jackets, bandanas, gloves and registrant’s
retail stores featuring motorcycles, motorcycle
accessories, motorcycle parts, and clothing. In this
Serial No. 77200140
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regard, it is settled that likelihood of confusion may
result from the use by different entities of the same or
similar marks in connection with goods, on the one hand,
and services which deal with or are related to those goods,
on the other. See Genesco Inc. v. Martz, 66 USPQ 2d 1260
(TTAB 2003) [applicant’s clothing items are related to
opposer’s retail and mail order services in the field of
clothing]. See also Wet Seal Inc. v. FD Management Inc.,
82 USPQ2d 1629 (TTAB 2007); In re Best Products Co., Inc.,
231 USPQ 988 (TTAB 1886) [jewelry store services and
jewelry are highly related goods and services]; J. Thomas
McCarthy, Trademarks and Unfair Competition §24:25 (2009)
[“[w]here the services consist of retail sales services,
likelihood of confusion is found when another mark is used
on goods which are commonly sold through a retail outlet”].
The examining attorney has introduced third-party
registrations for marks that cover retail stores which
feature motorcycles, parts and accessories, and clothing,
e.g., Registration Nos. 1987067; 2152371; 2724677; 2763927;
3151664; 3058720; 3132231; 3201089; 3295357; and 3208207.
In addition, the examining attorney submitted the web pages
of several online retailers which feature motorcycle
accessories and clothing. In this case, registrant’s
services involve the sale of clothing such as applicant’s,
Serial No. 77200140
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and we find that the respective goods and services are
related, at least to that extent.
There are no limitations or restrictions in either
applicant’s or registrant’s identification of goods and/or
services, and we therefore presume that those goods and
services are marketed in all normal trade channels for such
goods and services and to all normal classes of purchasers
of such goods and services. See In re Elbaum, 211 USPQ 639
(TTAB 1981). Given the above-noted relationship between
applicant’s goods and registrant’s services, we presume
that applicant’s and registrant’s trade channels and
purchasers overlap.
We conclude from the foregoing that consumers familiar
with registrant’s retail stores featuring motorcycles,
motorcycle accessories, motorcycle parts, and clothing
offered under its mark LIVE FREE AND RIDE would be likely
to believe, upon encountering applicant’s mark LIVE FREE
RIDE FREE for clothing, that the goods and services
originated with or are somehow associated with or sponsored
by the same entity.
Decision: The refusal to register is affirmed.