Gummi-Jager KG GmbH & Cie

Trademark Trial and Appeal Board

Sep 28, 2001

No. 75606899 (T.T.A.B. Sep. 28, 2001)

9/28/01

Paper No. 13
TEH

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Gummi-Jager KG GmbH & Cie
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Serial No. 75/606,899
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Robert W. Becker of Robert W. Becker & Associates for Gummi-Jager
KG GmbH & Cie.

Lourdes D. Ayala, Trademark Examining Attorney, Law Office 106
(Mary Sparrow, Managing Attorney).
_______

Before Hohein, Chapman and Holtzman, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

Gummi-Jager KG GmbH & Cie has filed an application to
register the mark shown below for "bowling pins and ninepins."1

1 Serial No. 75/606,899, filed December 18, 1998, alleging 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. 75/606,899
2
The Trademark Examining Attorney has refused registration under
Section 2(d) of the Trademark Act on the ground that applicant's
mark so resembles the typed mark ARTEMIS in Registration No.
2,270,219 for "archery bows, archery arrows, and archery
implements, namely, bow cases, arm guards, targets and quivers"
as to be likely to cause confusion.2
Applicant has appealed. Briefs have been filed, but an oral
hearing was not requested.
Here, as in any likelihood of confusion analysis, we look to
the factors set forth in In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563 (CCPA 1973), giving particular
attention to the factors most relevant to the case at hand,
including the similarity of the marks and the relatedness of the
goods or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976); and In re
Azteca Restaurant Enterprises Inc., 50 USPQ2d 1209 (TTAB 1999).
We agree with the Examining Attorney that the marks are
identical in sound and commercial impression, and substantially
similar in appearance. The dominant portion of applicant's mark
is the word ARTEMIS. That same word is registrant's entire mark.
Design elements such as that appearing in applicant's mark are

2 Registration No. 2,270,219, issued August 17, 1999, based on Section
44 of the Trademark Act.

Ser No. 75/606,899
3
generally less important than the word portion of a mark in
creating an impression. See In re Appetito Provisions Co., 3
USPQ2d 1553 (TTAB 1987). This is particularly true where, as
here, the design portion of applicant's mark is far less
prominent than the word ARTEMIS, and therefore even less likely
to be noticed or remembered by purchasers when seeing either
applicant's or registrant's mark. Moreover, registrant could
depict its mark ARTEMIS in the same block letter form as
applicant uses, thereby rendering the words in the two marks
visually identical. Phillips Petroleum v. C.J. Webb, 442 F.2d
1376, 170 USPQ 35, 36 (CCPA 1971); and INB National Bank v.
Metrohost, 22 USPQ2d 1585, 1588 (TTAB 1992).
The marks may differ somewhat in meaning in relation to the
respective goods. The word ARTEMIS, referring in mythology to a
Greek goddess characterized as a huntress, is suggestive in
relation to archery equipment, but it has no such connotation in
relation to bowling pins and thus is essentially arbitrary for
such goods. However, the meaning of ARTEMIS may not be generally
known to the purchasing public and in any event the similarities
in the two marks far outweigh any possible differences in
meaning.
Applicant does not dispute the similarity of the marks but
argues instead that there is no likelihood of confusion in view
of the differences in the goods and the channels of trade as well
Ser No. 75/606,899
4
as customers for such goods. Applicant has submitted the
declaration of Edward J. Baur, Manager, Programs and Production,
of the American Bowling Congress, an institution that tests and
certifies bowling lane equipment. Mr. Baur states that he has
been involved with the bowling industry for over 27 years and
that:
Bowling pins are sold to a very limited customer base,
namely bowling centers, to which they are sold directly,
either from the manufacturer itself or through manufacturing
reps. Bowling pins are never sold through sporting goods
stores, nor are they sold through Internet "shops." Bowling
pins are marketed through unique channels of trade, and
certainly not in the same manner as conventional sporting
goods. Therefore, customers for bowling pins on the one
hand, and archery equipment on the other hand, would never
encounter such goods together.

The Examining Attorney, however, argues that the goods,
while different, are related and are sold in the same channels of
trade. The Examining Attorney has made of record five use-based
third-party registrations covering both types of equipment and
the results of an Internet search for websites containing the
phrase "bowling and archery equipment." The Examining Attorney
has highlighted approximately sixty of such listings and claims
they demonstrate that
...the same people, schools, and organizations that feature
bowling also feature archery and therefore, the same people
who are active in one sport may be active in both sports.

The question, then, is whether the circumstances surrounding
the marketing of the respective goods are such that purchasers
Ser No. 75/606,899
5
encountering them would, in view of the similarity of the marks,
mistakenly believe that the goods emanate from the same source.
See Monsanto Co. v. Enviro-Chem Corp., 199 USPQ 590 (TTAB 1978)
and In re International Telephone & Telegraph Corp., 197 USPQ 910
(TTAB 1978). Even if the marks are identical, if these
conditions do not exist, the Board has held that confusion is not
likely. See In re Unilever Limited, 222 USPQ 981 (TTAB 1984) and
In re Fesco, Inc., 219 USPQ 437 (TTAB 1983).
While archery equipment and bowling pins can both be broadly
characterized as sports equipment, the mere fact that a term may
be found which encompasses the respective products does not mean
that customers will view the goods as related in the sense that
they will assume that they emanate from or are associated with a
common source. See, e.g., General Electric Co. v. Graham
Magnetics Inc., 197 USPQ 690 (TTAB 1977); and Harvey Hubbell Inc.
v. Tokyo Seimitsu Co., Ltd., 188 USPQ 517 (TTAB 1975). There is
no per se rule that all sports equipment is related. See In re
Donnay International, S. A., 31 USPQ2d 1953 (TTAB 1994). More
particularly, there is no inherent relationship between the goods
at issue in this case and they are, in fact, quite different in
character. Bowling pins, unlike bowling balls or bowling shoes,
would seem to be more of a necessary part of the equipment for a
bowling facility rather than separately purchased consumer items
such as archery bows and arrows and targets.
Ser No. 75/606,899
6
Moreover, the five third-party registrations made of record
by the Examining Attorney do not convince us that the respective
goods are related. One of the identified registrations involves
a house mark (WILSON) covering a broad range of sporting goods
and is not necessarily reflective of the marketplace in general
for such goods. Another registration does not include bowling
pins in the list of goods. One other registration refers only to
"bowling games," suggesting that the pins are sold only as part
of the game as a whole. The remaining two registrations,
although encompassing the goods at issue, are insufficient
evidence to show that the respective goods are of a type which
purchasers would typically expect to emanate from the same
source.
Nonetheless, even if these goods would be considered to
emanate from the same source, we have no persuasive evidence that
the goods would be encountered in the same channels of trade by
the same purchasers. In cases where an application and
registration do not contain limitations describing a particular
channel of trade or class of customer, the goods are assumed to
travel in all normal channels of trade to all usual purchasers.
See Canadian Imperial Bank of Commerce v. Wells Fargo Bank, N.A.,
811 F.2d 1490, 1492, 1 USPQ2d 1813, 1814-15 (Fed. Cir. 1987). It
can be presumed that normal channels of trade for archery
equipment, like other conventional sports equipment, would
Ser No. 75/606,899
7
include sports equipment wholesalers and sporting goods stores or
other retail outlets. However, it is not common knowledge and
the Examining Attorney has not shown that those are the normal
trade channels for bowling pins. In fact, applicant has
demonstrated that these goods are only sold directly either from
the manufacturer itself or through manufacturing representatives.
The Examining Attorney's printout of website listings referring
to "bowling and archery equipment" does not show otherwise. A
number of these websites seem to offer archery as well as bowling
equipment generally but there is no indication that the bowling
equipment refers to anything other than the typical equipment
which is customarily purchased by consumers such as bowling
balls, gloves or shoes. Only two of the sixty websites contain a
specific reference to bowling pins and archery equipment but
those excerpts are so abbreviated that it is impossible to
determine the nature of the activity conducted over the website.
It is not at all clear whether the goods are actually sold at
those websites or whether the websites merely provide, for
example, advertising for other companies or directories of
manufacturers or suppliers of such equipment. A number of other
websites highlighted by the Examining Attorney are simply links

Ser No. 75/606,899
8
to other search engines such as Excite, or duplicates of other
listings.3
Nor is there evidence to show that the purchasers for the
goods are the same. Applicant's evidence shows that bowling pins
are only sold to a very limited customer base, namely bowling
centers. The Examining Attorney's Internet evidence indicates
that organizations such as schools and sports facilities provide
both bowling and archery facilities. However, to the extent that
schools, for example, are among the "usual" purchasers for both
archery equipment and bowling alleys, there is no evidence that
the school would do anything more than contract for the
installation of the bowling alley. There is no evidence that the
school would deal with separate companies for each component part
of the facility such as the wood for the lanes, the seating for
the players, the scorekeeping apparatus, the pin-setting
machinery and finally the pins themselves.
It is true that likelihood of confusion may be based on
confusion of ultimate users, bowlers in this case, as well as
purchasers of the goods. However, there is nothing in the record
to indicate that bowlers would be aware of the trademark on pins
or ever even get close enough to the pins to see any trademark.

3 Still other websites refer to "bowling pins" as a type of target used
on shooting ranges.
Ser No. 75/606,899
9
In view of the foregoing, we find that although the marks in
this case are very similar, the record shows that the respective
goods are not related or marketed under circumstances which would
give rise to the mistaken belief that the goods emanate from a
single source.
Decision: The refusal to register is reversed.