Good Sports Inc.

Trademark Trial and Appeal Board

Jul 20, 2011

No. 77738935 (T.T.A.B. Jul. 20, 2011)

Mailed: 7/20/11

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. 77738935
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Mario G. Ceste, Esq. for Good Sports Inc.

Kim Saito, Trademark Examining Attorney, Law Office 102
(Karen M. Strzyz, Managing Attorney).
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Before Quinn, Bucher and Grendel, Administrative Trademark
Judges.

Opinion by Quinn, Administrative Trademark Judge:

Good Sports Inc. filed, on May 17, 2009, an
application to register the mark RIDE OR DIE (in standard
characters) for “clothing, namely tee shirts, sweat shirts,
hooded sweat shirts, tank-tops, sleeveless shirts, hats,
caps, underwear, jackets, bandannas, [and] gloves” (in
International Class 25). Applicant claims first use
anywhere on January 1, 2009, and first use in commerce on
January 15, 2009.
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act, 15 U.S.C.
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Ser No. 77738935
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§1052(d), on the ground that applicant’s mark, when applied
to applicant’s goods, so resembles the previously
registered mark RIDE TILL I DIE (in standard characters)
for “dresses; gloves; hats; pants; shirts; shoes; [and]
socks” (in International Class 25)1 as to be likely to cause
confusion.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs.
Applicant argues that despite the common presence of
the words “RIDE” and “DIE” in the two marks, the marks are
not similar in that registrant’s mark contains the
additional words “TILL I.” In view thereof, applicant
points to the differences between the meanings of the marks
when they are considered in their entireties. According to
applicant, its mark RIDE OR DIE is “a motorcyclist’s
farewell meaning ‘goodbye and ride safely’”; it is also
“shorthand for ‘ride it out’ and ‘die trying,’ that is to
stay with it to the end even if it kills you, through good
and bad.” Registrant’s mark, on the other hand, means
“that people enjoy riding and will not give it up for
anything.” (Response, February 21, 2010). In connection
with its arguments based on meaning, applicant submitted
excerpts retrieved from the Internet version of the slang

1 Registration No. 3412168, issued April 15, 2008.
Ser No. 77738935
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Urban Dictionary. Applicant does not dispute the
similarity between the goods.
The examining attorney contends that both marks are
“bookended” by the words “RIDE” and “DIE,” and both marks
invoke riding and dying. As to meaning, while the
examining attorney concedes that the marks have “very
slightly different meanings,” the difference is subtle.
Overall, the examining attorney maintains that the marks
are confusingly similar. As for the goods, the examining
attorney asserts that they are identical in part, and
otherwise related.
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 & 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,
however, two key considerations are the similarities
between the marks and the similarities between the goods.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24 (CCPA 1976).
We first turn to consider the similarity between the
goods. In considering this second du Pont factor, it
Ser No. 77738935
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should be noted at the outset that there is no per se rule
governing likelihood of confusion cases involving all types
of wearing apparel. See In re British Bulldog, Ltd., 224
USPQ 854 (TTAB 1984). However, in numerous cases in the
past, many different types of apparel have been found to be
related products which are sold in the same trade channels
to the same classes of purchasers, including to ordinary
consumers, and that confusion is likely to result if the
goods were to be sold under similar marks.2
As pointed out by the examining attorney, applicant
does not dispute that its clothing items and registrant’s
clothing items are related. Indeed, the examining attorney
highlights the fact that the respective identifications of
goods are identical as to the following items: hats and
gloves. Further, the terminology “shirts” in registrant’s
identification of goods is broad enough to encompass the

2 See, e.g., Cambridge Rubber Co. v. Cluett, Peabody & Co., 286
F.2d 623, 128 USPQ 549 (CCPA 1961) [women’s boots related to
men’s and boys’ underwear]; Jockey Int’l, Inc. v. Mallory &
Church Corp., 25 USPQ2d 1233 (TTAB 1992) [underwear related to
neckties]; In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991)
[women’s pants, blouses, shorts and jackets related to women’s
shoes]; In re Pix of America, Inc. 225 USPQ 691 (TTAB 1985)
[women’s shoes related to outer shirts]; In re Mercedes Slacks,
Ltd., 213 USPQ 397 (TTAB 1982) [hosiery related to trousers]; In
re Cook United, Inc., 185 USPQ 444 (TTAB 1975) [men’s suits,
coats, and trousers related to women’s pantyhose and hosiery];
and Esquire Sportswear Mfg. Co. v. Genesco Inc., 141 USPQ 400
(TTAB 1964) [brassieres and girdles related to slacks for men and
young men].
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same types of shirts more specifically identified in the
application. Likelihood of confusion may be found based on
any item that comes within the identification of goods in
the involved application or registration. Tuxedo Monopoly,
Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ
986, 988 (CCPA 1981).
Given that applicant’s and registrant’s goods are, in
part, identical, or otherwise closely related clothing
items, we presume that they travel in the same trade
channels (e.g., clothing stores, department stores and the
like), and that the clothing is bought by the same classes
of purchasers.3 These classes would include ordinary
consumers, who would be expected to exercise nothing more
than ordinary care in making their purchasing decision.
The identity or otherwise close relationship between
the goods, and the identity in trade channels and
purchasers are factors that weigh heavily in favor of a
finding of a likelihood of confusion.

3 Applicant, in its brief, indicates that its goods are typically
sold at motorcycle festivals, and in retail stores and through
websites selling motorcycles and accessories therefor.
Applicant’s identification of goods does not include any such
limitations and, thus, this information is immaterial to our
analysis. Rather, in the absence of any limitation, we must
presume that the goods are marketed in all normal trade channels
for such goods. In re Davey Products Pty. Ltd., 92 USPQ2d 1198,
1203 (TTAB 2009).
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We next turn to compare the marks in their entireties
as to appearance, sound, connotation and commercial
impression to determine the similarity or dissimilarity
between them. Palm Bay Imports, Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689 (Fed. Cir. 2005). The test, under the first du Pont
factor, 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 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).
Finally, where, as in the present case, the marks are
used on identical goods (at least in part), the degree of
similarity between the marks that is necessary to support a
finding of likely confusion declines. Century 21 Real
Estate Corp. v. Century Life of America, 970 F.2d 874, 23
USPQ2d 1698 (Fed. Cir. 1992).
Applicant’s mark RIDE OR DIE and registrant’s mark
RIDE TILL I DIE are similar in sound and appearance. Each
mark begins with the identical word “RIDE,” and ends with
Ser No. 77738935
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the identical word “DIE.” The absence of “TILL I” in
applicant’s mark is insufficient to distinguish it from
registrant’s mark.
As for meaning, the examining attorney is willing to
concede that the marks have “very slightly different
meanings,” with applicant’s mark RIDE OR DIE conveying the
idea that a person will ride or die from wanting to ride,
and registrant’s mark RIDE TILL I DIE meaning a person will
ride until his/her death. Despite this slight nuance in
meaning, the marks still convey images of “riding” and
“dying” in pithy phrases; although perhaps not identical in
connotation, the marks have similar meanings, that is, “I’m
going to ride until I die.” While we have considered the
slang meanings of the phrases as shown by applicant’s
evidence, any difference in meaning is so subtle and
nuanced that only purchasers engaging in extremely careful
scrutiny and parsing would distinguish between the marks on
this basis. In any event, we hasten to add that any
nuanced difference in meaning is clearly outweighed by the
presence of the identical words in each mark, “RIDE” and
“DIE,” that results in marks that sound and look alike.
We agree with the examining attorney’s assessment that
the marks “are pithy phrases using monosyllabic words that
reference riding and dying...and the rhythm and feel of the
Ser No. 77738935
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marks are similar.” (Brief, unnumbered pp. 3 and 4).
Given the similarities between the marks, when used in
connection with identical goods, we find that the marks in
their entireties engender similar overall commercial
impressions.
Applicant asserts that the examining attorney has
improperly placed emphasis on the words “RIDE” and “DIE”
which, according to applicant, are generic or merely
descriptive. Contrary to the gist of this argument,
neither of the words “RIDE” or “DIE” in the marks is merely
descriptive, let alone generic for clothing items. To the
extent that the words are part of marks functioning as
discrete source indicators (and not simply as part of a
motto of serious bikers), both “RIDE” and “DIE” appear to
be arbitrary for these goods.
The similarities between the marks RIDE OR DIE and
RIDE TILL I DIE weigh in favor of a finding of likelihood
of confusion.
We conclude that consumers familiar with registrant’s
clothing items sold under the mark RIDE TILL I DIE would be
likely to believe, upon encountering applicant’s mark RIDE
OR DIE for identical and otherwise related clothing items,
that the goods originated from or are associated with or
sponsored by the same entity.
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Lastly, to the extent that any of the points raised by
applicant raise a doubt about likelihood of confusion, that
doubt is required to be resolved in favor of the prior
registrant. In re Hyper Shoppes (Ohio), Inc., 837 F.2d
840, 6 USPQ2d 1025 (Fed. Cir. 1988); and In re Martin’s
Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289
(Fed. Cir. 1984).
Decision: The refusal to register is affirmed.