H-D Michigan, Inc.v.Hog Cream Enterprises, Inc.

Trademark Trial and Appeal Board

Feb 24, 2005

No. 91152998 (T.T.A.B. Feb. 24, 2005)

Mailed:
February 24, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

H-D Michigan, Inc.

v.

Hog Cream Enterprises, Inc.
_____

Opposition No. 91152998
to application Serial No. 76219514
filed on March 5, 2001
_____

Jerre B. Swann and William M. Bryner of Kilpatrick Stockton
LLP for H-D Michigan, Inc.

Hog Cream Enterprises, Inc., pro se.
______

Before Seeherman, Hohein and Walters, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

H-D Michigan, Inc. has opposed the application of Hog
Cream Enterprises, Inc. to register the mark HOG CREAM RIDE
THE BEST PORK THE REST SPF 15 and design, as shown below,
for suntan lotion.1 The words CREAM and SPF 15 have been

1 Application Serial No. 76219514, filed August 12, 2002, and
asserting first use and first use in commerce on February 23,
2001.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Opposition No. 91152998
2
disclaimed apart from the mark as shown. Applicant has
described the design portion of its mark as a warthog riding
a motorcycle.

As grounds for opposition, opposer has alleged, inter
alia, that since prior to the filing of applicant’s
application, opposer has used various trademarks
incorporating the word HOG in connection with the sale of a
wide variety of goods and services; that opposer owns
registrations for marks incorporating the word HOG;2 that
the consuming public have come to identify goods sold under
the HOG marks with opposer or with a single source; that
applicant’s mark is confusingly similar to opposer’s HOG
marks, and applicant’s identified goods are related to the
goods and services sold under opposer’s HOG marks; that
applicant adopted its mark in order to trade on the
reputation and goodwill associated with opposer’s HOG marks;

2 Such registrations are specifically set forth later in this
opinion.
Opposition No. 91152998
3
and that applicant’s mark, when used in connection with
applicant’s identified goods, so resembles opposer’s
previously registered and used HOG marks as to be likely to
cause confusion or mistake or to deceive.
In its answer applicant has admitted that:
Opposer H-D Michigan, Inc., its
subsidiary, Harley Davidson Motor
Company Group, Inc. has for many years
been engaged in interstate commerce in
the business of manufacturing,
distributing, and selling Harley-
Davidson motorcycles, motorcycle pasts
and accessories;

Harley Davidson has a variety of
trademarks including H.O.G. (Harley
Owners Group), the bar and shield
design;

Harley Davidson owns several trademarks
in various classes; and

Harley Davidson registrations remain
valid.

Applicant has also admitted that Harley-Davidson has
extensively advertised its products, but asserts that
opposer does not advertise a sport sunscreen, nor that it is
famous for a sunscreen product. Applicant has also denied
the other salient allegations in the notice of opposition.
The file includes the pleadings and the file of the
opposed application. Opposer has submitted, under notice of
reliance, portions of the discovery deposition of applicant;
certified status and title copies of its pleaded
registrations; printed publications referencing opposer’s
Opposition No. 91152998
4
HOG trademarks; and the affidavit testimony, with exhibits,
of Linda A. Heban, vice president and chief trademark
counsel for H-D Michigan, Inc., and of Ed Schneegas, the
store manager of Tombstone Cycles. Opposer has also
submitted a written stipulation by the parties to the
submission of testimony by affidavit.3
Applicant has submitted the declaration of Tammy G.
Elcyzyn, applicant’s president and CEO; and what are
described as printed publications. Opposer has moved to
strike the notice of reliance on printed publications, and
to strike certain statements from Ms. Elcyzyn’s
declaration.4 Although applicant did not respond to the
motion, we will not treat it as conceded (see Trademark Rule
2.127(a)), but will instead consider it on the merits.
Most of the exhibits submitted by applicant under
notice of reliance appear to be portions of advertising
materials of third parties who sell motorcycles. For
example, applicant identifies Exhibit A as “Kawasaki Vulcan
Cruise Sales pamphlet” and Exhibit B as “Honda VTX 1300C
1300S Sales pamphlet.” Exhibit I, a Catalog Favorites
catalog, bears the name of Tammy G. Elcyzyn with her

3 Opposer’s consented motion to extend trial dates is granted.
4 Opposer points out in its motion to strike that the Elcyzyn
declaration does not contain proof of service on opposer. It is
not clear whether opposer was not, in fact, served, or only
whether the declaration did not contain proof of service. In any
event, since it is obvious from opposer’s motion that it did, in
fact, obtain the declaration, we take no action at this point
regarding the lack of proof of service.
Opposition No. 91152998
5
address, as does Exhibit J, a Cycle Emporium catalog. None
of these promotional/advertising materials constitutes
printed publications which may be submitted pursuant to
Trademark Rule 2.122(e). See, generally, TBMP 704.08.5
Two of the Exhibits submitted under notice of reliance
are identified as being from “opposer’s reliance #1”
(Exhibit G) and from “Opposer’s Exhibit” (Exhibit H).
Exhibit G is page 51 from the discovery deposition of Tammy
Elcyzyn, portions of which opposer made of record under a
notice of reliance. This page was part of opposer’s
submission, and therefore it is already of record. As for
Exhibit H, it is a single page of what might be a catalog or
other promotional material. However, because we cannot
ascertain from what exhibit of opposer’s Exhibit H is from,
and because it has not been adequately identified, we have
not considered it.6

5 Exhibit F is a catalog of opposer, rather than a third-party.
Such catalog does not constitute a printed publication which may
be submitted under Trademark Rule 2.122(e). Even if this catalog
were properly of record, it would not change the result herein.
6 It is possible that this page may have been part of an exhibit
introduced during the discovery deposition of Ms. Elcyzyn, and
relates to a portion of the discovery deposition that opposer did
not submit under its notice of reliance. Trademark Rule
2.120(j)4) provides that if only part of a discovery deposition
is made part of the record by a party, an adverse party may
introduce under a notice of reliance any other part of the
deposition which should in fairness be considered so as to make
not misleading what was offered by the submitting party. Such a
notice of reliance must be supported by a written statement
explaining why the adverse party needs to rely upon each
additional part. Because we cannot ascertain the origin of
applicant’s Exhibit H to even know that it is part of Ms.
Elcyzyn’s discovery deposition, nor can we ascertain why, if it
Opposition No. 91152998
6
Accordingly, the only exhibit submitted under
applicant’s notice of reliance that we have considered is
Exhibit G.7
Opposer has also moved to strike certain statements
from the declaration of Ms. Elcyzyn. In general, the Board
prefers not to strike testimony. However, to the extent
that the statements are not supported by the record, or are
based on unauthenticated materials, they have little or no
probative value.8
Only opposer has filed a brief. Neither party
requested an oral hearing.
Since 1903 opposer or its predecessors-in-interest or
its corporate affiliates (hereafter opposer) have been
engaged in the business of manufacturing, distributing and
selling HARLEY-DAVIDSON motorcycles, parts and accessories,

were part of the deposition, it should in fairness be considered
so as to make not misleading those portions of the discovery
deposition that were offered by opposer, we find that Exhibit H
cannot be made of record pursuant to the provisions of Trademark
Rule 2.122(j)(4).
7 In a footnote in its motion to strike, opposer points out that
applicant failed to indicate the relevance of the exhibits she
submitted, as required by Trademark Rule 2.122(e). Opposer does
not ask that we strike the exhibits on this basis, and we decline
to do so. See Mack Trucks, Inc. v. California Business News,
Inc., 223 USPQ 164, 165, n.5 (TTAB 1984).
8 Opposer points out in a footnote in its motion to strike that
the testimony declaration by Ms. Elcyzyn was not accompanied by
the written stipulation of the parties that provided for the
submission of testimony by affidavit/declaration, even though the
terms of the stipulation required that a copy be attached to any
affidavit or declaration submitted thereto. Because opposer had
previously submitted copies of the stipulation with the affidavit
testimony of its witnesses, we do not consider applicant’s
failure to submit the stipulation to be material.

Opposition No. 91152998
7
as well as other goods and services related to motorcycling
or of interest to motorcycle enthusiasts. In 1982, opposer
established the Harley Owners Group, or “H.O.G,” as a social
club for owners of Harley-Davidson motorcycles. Opposer has
used “HOG” marks since 1982. As evidenced by opposer’s 1997
catalog (exhibit 37), opposer has used various HOG marks,
e.g.., those depicted in Registration Nos. 1710653 (HOG,
HARLEY OWNERS GROUP Design), 14383313 (HOG with Wheel Design
and 1710643 (HOG, LADIES OF HARLEY Designs), on, inter alia,
sweatshirts, shirts, caps, bandanas, mugs, plaques, pins,
zipper pulls, decals, atlases, travel clocks, pens, key
rings, directors chairs, poker kits, flags and patches.
Since 1983 opposer has distributed to its H.O.G. members a
publication called HOG TALES. Currently 600,000 copies are
distributed in the United States on a bi-monthly basis.
Opposer sells its HOG-branded merchandise through a network
of authorized independent dealers and through retail
outlets, amounting to 793 outlets nationwide. The products
are also sold through the chapters of its H.O.G. club, at
motorcycle rallies and H.O.G.-sponsored events.
H.O.G. and local H.O.G. chapters conduct state,
regional and national motorcycle rallies and various other
activities, amounting to thousands of H.O.G.-sponsored
events each year. The H.O.G. marks are displayed on tents
and banners at these events.
Opposition No. 91152998
8
From 1994-2003, opposer has spent in excess of $111
million advertising and promoting its HOG marks and, between
1999 and 2003, has sold in excess of $14 million of goods
bearing the HOG marks.
Opposer has also, through the years, used porcine
images in connection with promoting its goods and services.
These images include a HOG bank that was used in an
advertising campaign in 1981-82, a HOG mug and HOG cookie
jar in 1983-84 and, in the early 90’s, a hog stuffed animal.
Applicant was started in July 2000 by Tammy Gray-
Elcyzyn, who is its president, CEO and sole officer,
shareholder and employee. Because Ms. Elcyzyn and applicant
are essentially alter egos, references to Ms. Elcyzyn’s
activities are the same as references to applicant’s. Ms.
Elcyzyn created HOG CREAM sunscreen to capture the market of
“unscented” sunscreen buyers. Her idea was to customize the
labels of the product to the type of activity tourists to
Daytona Beach would attend, and the product would thereby
become a souvenir of their visit. Motorcycle racing is a
major event/activity in Daytona Beach. She chose a warthog
as a character because it had the skin texture and attitude
she wanted to convey, and had this character depicted riding
a motorcycle because she felt that a label appealing to
motorcycle enthusiasts would give her the most outlets of
the various labels she envisioned. Future labels that she
Opposition No. 91152998
9
has in mind would depict the warthog character riding other
“toys” that are used in Daytona, such as stock cars and
surfboards.
The consumer base for applicant’s suntan lotion is the
public at large. Applicant’s first sale was to Ms.
Elcyzyn’s husband, on February 22, 2001. This was followed
by sales in March, during “Bike Week,” to a few vendors in
Daytona and New Smyrna Beach, Florida, i.e., Bulldog
Leathers, a motorcycle accessories store (parts and
clothes), the Harley-Davidson dealership in New Smyrna
Beach, and a gas station in Barberville, Florida. In
January 2002 applicant made a sale to Tombstone Cycles, a
motorcycle sales and parts store in New Smyrna Beach. Her
only other customer has been Highlander Café and Gifts, a
gift shop and ice cream parlor. Applicant’s sales from 2001
through 2003 have amounted to $314, and it has stopped
actively selling its HOG CREAM suntan lotion since it
received notification of this opposition.
Applicant has not expended any sums for advertising.
When applicant was actively selling the product, its
promotional activities were limited to directly visiting
possible retailers. Applicant also has a website that
advertises its product, although the primary purpose of
having the site is to make applicant appear to be a more
Opposition No. 91152998
10
substantial business. Applicant intends to advertise its
brand through other products such as T-shirts and caps.
Applicant has used the “tag lines” “lightly scented to
entice those with wheels not wings” and “Looking good in
Leather, not like Leather” in connection with promoting
goods sold under its mark. On its website, it lists, as a
reason for buying its product, “I sold my Harley to start
this business! And I really would like to buy another
someday.”
Applicant has admitted opposer’s ownership of its
pleaded registrations. Opposer has also made these
registrations of record by submitting certified copies
thereof, showing that the registrations are subsisting and
are owned by opposer, for the following:
Mark Goods/Services
HOG Motorcycle parts, namely timer
covers, derby covers, and
medallions;9
HOG Metal badges; figurines made of
metal; folding knives, sport
knives and knife cases; clocks,
watches, jewelry of precious and
non-precious metal, namely, pins,
charms, earrings, bracelets,
necklaces, and rings; ornamental
lapel pins; ashtrays, cigarette
cases and holders of cigarette
lighters of precious metals; belt
buckles of precious metal;
greeting cards, road atlas,
posters, calendars, newsletters,
books and magazines relating to

9 Registration No. 1599492, issued June 5, 1990; Section 8 & 15
affidavits accepted and acknowledged; renewed.
Opposition No. 91152998
11
motorcycling, paper banners
relating to motorcycling, playing
cards, decals, note paper, pens
and pencils, checkbook clutches;
drinking steins; glassware,
namely, plates, cup saucers,
glasses and other containers for
food and beverage mugs, cups,
insulated can holders,
commemorative plates,
toothbrushes, quencher cups and
figurines made of ceramic
porcelain and glass; leather can,
glass and mug holders; flags and
banners not of paper; clothing,
namely, shirts, sweatshirts,
T-shirts, caps, hats, jackets,
vests, socks, shoes, boots,
scarves, belts, sweat pants,
pants, bandanas, gloves,
suspenders, chaps, rainsuits, and
mittens; belt buckles not of
precious metals, ornamental pins
and embroidered patches for
clothing; ashtrays, cigarette
cases and holders of cigarette
lighters not of precious metal;
cigarette lighters10

(hereafter “HOG with
Wheel Design”)
Motorcycle parts, namely timer
covers, derby covers and gas cap
medallions11

10 Reg. No. 1716992, issued September 18, 1992; Section 8 & 15
affidavits accepted and acknowledged; renewed.
11 Reg. No. 1483313, issued April 5, 1988; Section 8 & 15
affidavits accepted and acknowledged.
Opposition No. 91152998
12

Clocks, watches, pins, necklaces,
rings, bracelets, charms and tie
tacks; pens, mechanical pencils,
paper banners and road atlases;
wall plaques; T-shirts, caps,
sweatshirts, jackets, sweatpants
and shirts; embroidered patches
and belt buckles12

Sport knives and knife cases;
mugs, cups, insulated can
holders; flags and banners not of
paper; cigarette lighters not
made of precious metal13
HOG CLUB
(CLUB disclaimed)
Sandwiches14
HARLEY HOG Sandwiches15
HOG TIES
(TIES disclaimed)
Tie down straps for motorcycles16
(hereafter HOG, HARLEY
OWNERS GROUP Design)

Folding knives and knife cases;
greeting cards, road atlases,
posters, calendars, paper banners
relating to motorcycling, playing
cards, decals, note paper, pens,
pencils, and checkbook covers and
holders, newsletters, books, and
magazines relating to
motorcycling; drinking steins,
beverage glassware, mugs, cups,
insulated can holders, leather
can, glass and mug holders,
commemorative plates, non-
electric toothbrushes, quencher
cups, and figurines made of
ceramic, porcelain and glass;
flags and banners not of paper,
clothing, namely, shirts,

12 Reg. No. 1534200, issued April 11, 1989; Section 8 & 15
affidavits accepted and acknowledged.
13 Reg. No. 1810475, issued December 14, 1993; Section 8 & 15
affidavits accepted and acknowledged; renewed.
14 Reg. No. 1958775, issued February 27, 1996; Section 8 & 15
affidavits accepted and acknowledged.
15 Reg. No. 2118685, issued December 9, 1997; Section 8 & 15
affidavits accepted and acknowledged.
16 Reg. No. 2386246, issued September 12, 2000.
Opposition No. 91152998
13
sweatshirts, T-shirts, caps,
hats, jackets, vests, socks,
shoes, boots, scarves, belts,
sweat pants, pants, bandanas,
gloves, suspenders, chaps,
rainsuits, and mittens; belt
buckles not of precious metal,
ornamental lapel badges not of
precious metal and embroidered
patches; cigarette lighters,
cigarette cases not of precious
metal, and holders for cigarette
lighters not of precious metal17

(OWNERS GROUP
disclaimed)
jewelry18
(OWNERS GROUP
disclaimed)
Motorcycle club services19

17 Reg. No. 1710653, issued August 25, 1992; Section 8 & 15
affidavits accepted and acknowledged; renewed. Although opposer
did not plead this registration, it submitted it to applicant
with its requests for admission (asking applicant to admit that
the certificate was a true copy that was issued by the USPTO,
which applicant did), and also submitted a status and title copy
of the registration under notice of reliance. Therefore, we deem
the pleadings to be amended to assert this registration as a
basis for opposer’s likelihood of confusion claim. FRCP 15(b).
18 Reg. No. 2305867, issued January 4, 2000
19 Reg. No. 1455826, issued September 1, 1987; Section 8 & 15
affidavits accepted and acknowledged.
Opposition No. 91152998
14

(hereafter “HOG, LADIES
OF HARLEY Design)
Paper banners relating to
motorcycling; shirts,
sweatshirts, T-shirts, caps and
vests; embroidered patches20

Clocks, watches, jewelry of
precious and non-precious metal,
namely ornamental lapel and hat
pins, charms, earrings,
bracelets, necklaces and rings21
HOG TALES Newsletter relating to
motorcycling22

In view of opposer’s ownership of these subsisting
registrations, priority is not in issue. King Candy Company
v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108
(CCPA 1974).
Opposer has also submitted evidence that it used the
mark HOG on sunscreen in 1998, and an exhibit shows such
mark with the legend “1983-1998.” However, during the
discovery deposition of Ms. Elcyzyn, apparently in
connection with Ms. Elcyzyn’s concerns about confidentiality
of her business plans, opposer’s counsel made the statement
that opposer didn’t “have any suntan lotion” and that
“honestly, I do not know of any plans of theirs in that

20 Reg. No. 1710643, issued August 25, 1992; Section 8 & 15
affidavits accepted and acknowledged; renewed.
21 Reg. No. 2084703, issued July 29, 1997; Section 8 & 15
affidavits accepted and acknowledged.
22 Reg. No. 1477667, issued February 23, 1988; Section 8 & 15
affidavits accepted and acknowledged.
Opposition No. 91152998
15
regard.” p. 51. It is possible that sunscreen was offered
under the HOG mark only during 1998. It is also possible
that opposer’s counsel, who was not testifying, would not be
aware of all of the merchandising products on which opposer
uses its marks.23 In any event, because there is some
question as to whether opposer has used the mark HOG on
sunscreen subsequent to 1998, we have not considered such
use in determining the issue of priority.
This brings us to the issue of likelihood of confusion.
Our determination of this issue 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 Company, 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 and/or services. See Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA

23 Applicant points out that opposer’s 2001 catalog does not list
sunscreen. This catalog (Exhibit F), as noted previously, has
not been considered because it was not properly made of record.
In any event, we note that this catalog is devoted only to motor
accessories and motor parts. It is obvious from other catalogs
that opposer has made of record that its catalogs have different
focuses. “Therefore, even if the catalog were of record, we
would draw no negative conclusion from the fact that sunscreen
products do not appear in it.

Opposition No. 91152998
16
1976). See also, In re Dixie Restaurants Inc., 105 F.3d
1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
Turning first to the marks, as noted, opposer owns
registrations for HOG per se, as well as for marks which
contain the word HOG. In many of these registrations, and
in particular those for the mark HOG with Wheel Design, HOG
is the dominant element of the subject mark. In fact, in
the HOG with Wheel Design mark, not only is HOG the only
word in the mark, but the wheel forms the letter “O.” In
applicant’s mark, the word portion HOG CREAM is prominently
displayed, and is likely to be the term by which consumers
refer to and call for the goods. While the mark also
contains the phrases RIDE THE BEST, PORK THE REST and SPF
15, these are clearly subordinate and/or descriptive matter.
Further, although the mark also contains the design of a
“Hog Man” riding a motorcycle, it is the HOG CREAM word
portion that is dominant element of the mark, since
consumers will call for it by these words. See In re
Appetito Provisions Co., 3 USPQ2d 1553 (TTAB 1987).
Further, the word CREAM in applicant’s mark, which applicant
has admitted is generic for its goods and which has been
disclaimed, has no source-indicating significance. The
“hogman” design in applicant’s mark simply reinforces the
effect of the word HOG. Thus, HOG must be considered the
dominant element of applicant’s mark as well. Although we
Opposition No. 91152998
17
have compared the marks in their entireties, we have thus
accorded greater weight to the HOG portion of applicant’s
mark and to the word HOG in opposer’s HOG and Wheel Design
mark. See In re National Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985) (in articulating reasons for
reaching a conclusion on the issue of likelihood of
confusion, there is nothing improper in stating that, for
rational reasons, more or less weight has been given to a
particular feature of a mark, provided the ultimate
conclusion rests on a consideration of the marks in their
entireties).
The factor of the similarity of the marks thus favors
opposer.
With respect to the goods, opposer’s registration for
its mark HOG (Reg. No. 1716992) covers a wide variety of
consumer products, including figurines, knives, jewelry,
greeting cards, T-shirts and caps, mugs and cigarette
lighters. Similarly, opposer’s registration for HOG with
Wheel Design (Regs. No. 1534200 and 1810475) includes, inter
alia, clocks, jewelry items, pens, T-shirts and caps,
knives, mugs, embroidered patches and cigarette lighters.
It is clear from the evidence submitted that opposer uses
its marks as merchandising marks for a broad range of
collateral items, such that consumers are likely to believe,
upon seeing a mark that is confusingly similar to opposer’s
Opposition No. 91152998
18
marks on an item like suntan lotion, that such product is
part of opposer’s merchandising line. In fact, opposer has,
at least in 1998, used the mark HOG on suntan lotion.
Opposer has also offered, under its HARLEY mark, suntan
lotion and lip balm.
It is not necessary that the goods of the parties be
similar or competitive, or even that they move in the same
channels of trade to support a holding of likelihood of
confusion. It is sufficient that the respective goods of
the parties are related in some manner, and/or that the
conditions and activities surrounding the marketing of the
goods are such that they would or could be encountered by
the same persons under circumstances that could, because of
the similarity of the marks, give rise to the mistaken
belief that they originate from the same producer. In re
International Telephone & Telegraph Corp., 197 USPQ 910, 911
(TTAB 1978).
In this case, applicant’s goods are designed to appeal
to motorcycle enthusiasts. It is for that reason that
applicant has depicted a motorcycle as part of the mark. As
stated by applicant’s president in applicant’s supplemental
response to Interrogatory No. 13:
Decided that the label design with the
Hogman riding a motorcycle gave me the
most outlets. Nascar has two events
each year also but only 2 or 3 stock car
type stores, cafes are here. Whereas
there are many motorcycle type stores in
Opposition No. 91152998
19
the Daytona area. Also motorcycle
dealerships are all over the country,
while surf shops and jetski dealerships
are limited.

Applicant solicited motorcycle accessories stores and
motorcycle dealerships to sell its goods. Three of the five
venues to which it was able to sell its suntan lotion sell
motorcycles or accessories used by motorcyclists.
In view of the way applicant’s goods are marketed, we
find that the parties’ goods are related, and that the
factor of the similarity of the goods accordingly favors
opposer.
The goods are also, as the record establishes, sold in
the same channels of trade. In addition to applicant’s
discovery responses regarding its solicitation of and sales
to motorcycle and motorcycle accessories stores, opposer has
submitted the affidavit testimony of Ed Schneegas, the store
manager of Tombstone Cycles in Daytona Beach, Florida. He
testified that Tombstone Cycles is a motorcycle dealer that
sells motorcycles, motorcycle parts and motor-related
products, and that he had observed that the Daytona Beach
store had for sale sunscreen lotion bearing the mark HOG
CREAM with a design of a hog riding a motorcycle.
The du Pont factor regarding the channels of trade
therefore favors opposer.
With respect to the conditions under which sales are
made, suntan lotion is obviously an inexpensive item
Opposition No. 91152998
20
(applicant’s product sells for $5.00 per bottle) that can be
purchased on impulse, such as when a person is shopping for
another product and buys suntan lotion because it happens to
come into view. This factor, too, favors opposer.
The fifth du Pont factor is fame. As noted above, from
1994-2003, opposer has spent in excess of $111 million
advertising and promoting its HOG marks and, between 1999
and 2003, has sold in excess of $14 million of goods bearing
the HOG marks. However, opposer has not broken down its
sales and advertising for each HOG mark and the goods on
which it is used. Because opposer has not pleaded a family
of marks, our determination of likelihood of confusion must
be made with respect to each mark in connection with the
particular goods. As a result, the vagueness of the
evidence precludes us from finding that each mark is famous.
We can say, however, that opposer’s HOG marks are strong
marks. The catalogs that are in the record show that
opposer’s marks are used on collateral items because they
are merchandising marks, that is, consumers purchase the
goods because they prominently display the marks. Thus,
although we do treat this du Pont factor as playing the
dominant role that it can when a famous mark is involved,
see Kenner Parker Toys Inc. v. Rose Art Industries, Inc.,
963 F.2d 350, 22 USPQ2d 1453 (Fed. Cir. 1992), the strength
Opposition No. 91152998
21
of opposer’s HOG marks, as shown by the evidence of record,
favors opposer.
Related to the preceding factor is the number and
nature of similar marks in use on similar goods. There is
no evidence of third-party use, and therefore this factor,
too, favors opposer.24
The next two du Pont factors relate to the presence or
absence of evidence of actual confusion. We note that in
his affidavit Mr. Schneegas stated that, when he first
started working at Tombstone Cycles store in Daytona Beach
and encountered HOG CREAM sunscreen lotion he believed that
the product was connected with opposer. Because he was an
employee at the store, and there is no indication that he
was considering buying the sunscreen lotion, we do not treat
this testimony as evidencing actual confusion. On the other
hand, there have been so few sales of applicant’s product
that we can draw no conclusions from the lack of evidence of
actual confusion.25 These du Pont factors are therefore
neutral.

24 At Ms. Elcyzyn’s discovery deposition she was asked about
certain third-party registrations that she had found by searching
the USPTO’s electronic records. She confirmed that she was not
aware of any use of these registered marks. Third-party
registrations are not evidence of use of the marks therein in the
marketplace, and they do not show that the public is familiar
with the marks. See Olde Tyme Foods Inc. v. Roundy’s Inc., 961
F.2d 200, 22 USPQ2d 1542, 1545 (Fed. Cir. 1992); and AMF Inc. v.
American Leisure Products, Inc., 474 F.2d 1403, 177 USPQ 268, 269
(CCPA 1973).
25 As for actual confusion among the store managers to whom
applicant sold cases of its product, Ms. Elcyzyn testified that
Opposition No. 91152998
22
The variety of goods on which opposer’s mark is used is
a factor that strongly favors opposer. As noted previously,
opposer uses and has registered its HOG marks for a wide
variety of goods, and particularly goods that can be broadly
classified as accessories that would appeal to
motorcyclists. As Ms. Hebert testified, suntan lotion is an
item that would also appeal to motorcyclists. As a result,
consumers are likely to believe that suntan lotion is a
product offered by opposer.
Because applicant sold only a minimal amount of suntan
lotion, and because it is a start-up business, the extent of
potential confusion at this time is de minimis. However,
because applicant intends to and has appealed to the same
customers that would purchase opposer’s products and has to
and intends to offer them through the same channels of
trade, including motorcycle dealers and motorcycle parts and
accessories stories, the potential for confusion in the
future if its business expands is substantial.
Finally, although not a specific factor, we must
comment on the general impression created by applicant’s
mark and its promotional efforts. Applicant’s mark depicts
a “hogman” riding a motorcycle; opposer is famous for its
motorcycles and, as Mr. Schneegas’s testimony shows, those

when she solicited these people she introduced herself as being
from a local business. Given her explanation, it is not
Opposition No. 91152998
23
who have personal and professional experience with
motorcycles understand “hog” to refer to opposer. The
wording RIDE THE BEST in applicant’s mark, and the tag line
“Looking good in Leather” on its website, suggest motorcycle
riding. Applicant also uses the tag line “Lightly scented
to entice those with wheels not wings,” on its website, and
two of opposer’s marks, namely HOG, HARLEY OWNERS GROUP
Design and HOG, LADIES OF HARLEY Design, prominently feature
a wings design. Further, applicant states on its website
that “I sold my Harley to start this business!” Although
applicant has explained why it chose each portion of its
mark and tag lines, taken together applicant’s mark and
advertising material, at the very least, conjure up images
of opposer and may well be perceived as indicating a
connection between applicant’s goods and opposer. However,
we need decide whether or not applicant intended to trade on
opposer’s reputation. We find, on the basis of the du Pont
factors that we have discussed, that opposer has established
that applicant’s mark, as used on its goods, is likely to
cause confusion with its HOG and HOG with Wheel Design
marks. In view thereof, we do not reach the question of
whether applicant’s mark is likely to cause confusion with
the remaining HOG marks pleaded by opposer in the notice of
opposition.

surprising that there is no evidence that the retailers were not
Opposition No. 91152998
24
Decision: The opposition is sustained.

confused.