NTA Enterprise, Inc.

Trademark Trial and Appeal Board

Jul 12, 2013

No. 85478497 (T.T.A.B. Jul. 12, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
July 12, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re NTA Enterprise, Inc.
_____

Serial No. 85478497
_____

Blynn L. Shideler of The BLK Law Group for NTA Enterprise, Inc.

John M. Wilke, Trademark Examining Attorney, Law Office 104 (Chris Doninger,
Managing Attorney).
_____

Before Kuhlke, Bergsman and Ritchie, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
NTA Enterprise, Inc. (“applicant”) filed a use based application to register the
mark MARSHLAND and design, shown below, for the following goods as amended:
Fabrics for the commercial manufacture of Camouflage
articles by commercial manufacturers; Textile fabrics for
the commercial manufacture of clothing by commercial
manufacturers; Textile fabrics for use in the commercial
manufacture of garments, bags, jackets, gloves, and
apparel by commercial manufacturers; Camouflage fabric
for use as a textile in the commercial manufacture of
hunter clothing and hunter accessories by commercial
manufacturers, in Class 24.
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Serial No. 85478497

3

Our determination of likelihood of confusion under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are relevant to the factors
bearing on the issue of likelihood of confusion. In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also, In re Majestic
Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the services. See Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The
fundamental inquiry mandated by §2(d) goes to the cumulative effect of differences
in the essential characteristics of the goods and differences in the marks.”).
A. The similarity or dissimilarity of the marks in their entireties as to
appearance, sound, connotation and commercial impression.

We turn first to the du Pont likelihood of confusion factor focusing on the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont De Nemours & Co., 177
USPQ at 567. In a particular case, any one of these means of comparison may be
critical in finding the marks to be similar. In re White Swan Ltd., 8 USPQ2d 1534,
1535 (TTAB 1988); In re Lamson Oil Co., 6 USPQ2d 1041, 1042 (TTAB 1987). In
comparing the marks, we are mindful that the test is not whether the marks can be
Serial No. 85478497

4

distinguished when subjected to a side-by-side comparison, but rather whether the
marks are sufficiently similar in terms of their overall commercial impression so
that confusion as to the source of the goods offered under the respective marks is
likely to result. San Fernando Electric Mfg. Co. v. JFD Electronics Components
Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc. v.
Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d unpublished, No. 92-1086
(Fed. Cir. June 5, 1992).
Applicant’s mark MARSHLAND and design and registrant’s mark
MARSHLANDER and design are similar in terms of sound and appearance in that
registrant’s mark incorporates the word “Marshland.” Although the marks must be
considered in their entireties, including the design elements, 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. In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985). See also Price Candy Company v. Gold
Medal Candy Corporation, 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955)
(different features may be analyzed to determine whether the marks are similar).
In this case, where the marks consist of words and a design, the words are given
greater weight because they would be used by consumers to request or identify the
products. In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999); In re
Appetito Provisions Co., 2 USPQ2d 1553, 1554 (TTAB 1987). See also Sweats
Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798 (Fed.
Serial No. 85478497

5

Cir. 1987); Giant Food, Inc. v. Nation’s Food Service, Inc., 710 F.2d 1565, 218 USPQ
390 (Fed. Cir. 1983).
The “ER” suffix does not significantly distinguish the word MARSHLAND
from MARSHLANDER and it, in fact, highlights the similarity between the marks
by drawing a connection between the place (i.e., the marshland) and the people from
that place (i.e., a marshlander).
Moreover, the design element of applicant’s mark comprising “a silhouette of
marsh reeds” is not so distinctive as to create a separate and distinct commercial
impression simply underscores the connotation “marshland.” While the design
element of registrant’s mark comprising the silhouette of a man in a boat is more
distinctive than applicant’s design element, registrant’s design similarly
underscores the connotation “marshlander” by engendering the commercial
impression of a person from a marshland (i.e., a marshlander) and does not serve to
distinguish the marks.
When considering the marks in their entireties, we find that the marks are
similar in terms of appearance, sound, meaning and commercial impression.
B. The similarity or dissimilarity and nature of the goods described in the
application and registration.

Applicant is seeking to register its mark for the following goods:
Fabrics for the commercial manufacture of Camouflage
articles by commercial manufacturers; Textile fabrics for
the commercial manufacture of clothing by commercial
manufacturers; Textile fabrics for use in the commercial
manufacture of garments, bags, jackets, gloves, and
apparel by commercial manufacturers; Camouflage fabric
for use as a textile in the commercial manufacture of
Serial No. 85478497

6

hunter clothing and hunter accessories by commercial
manufacturers.
The cited registration is for rainwear. The term “rainwear” in registrant’s
description of goods is broad enough to encompass camouflage rainwear.
It is well settled that applicant’s goods and the registrant’s goods do not have
to be identical or directly competitive to support a finding that there is a likelihood
of confusion. It is sufficient if the respective goods are related in some manner
and/or that the conditions surrounding their marketing are such that they would be
encountered by the same persons under circumstances that could, because of the
similarity of the marks used in connection therewith, give rise to the mistaken
belief that they emanate from or are associated with a single source. In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993); In re International
Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978).
The Trademark Examining Attorney has submitted four use-based, third-
party registrations for goods listed in both the application and registration at issue.
Third-party registrations which individually cover a number of different goods that
are based on use in commerce may have some probative value to the extent that
they serve to suggest that the listed goods are of a type which may emanate from
the same source. In re Albert Trostel & Sons Co., 29 USPQ2d at 1785-1786; In re
Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). The
registrations are listed.2

2 We have not included the entire description of goods for each of the registrations. Only
the relevant goods are listed.
Serial No. 85478497

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Mark Reg. No. Goods/Services

TREBARK 1892882 Camouflage fabrics; ponchos

TIMBERGHOST 2636048 Textile photo-realistic camouflage
fabrics for use in clothing; raincoats,
rain pants, foul weather gear

S SANKO and design 3850967 Waterproof fabric for the manufacture
of clothing; rainwear

FABRIC TO THE NEXT 3030393 Textile fabrics used to manufacture
clothing; rainwear

We also note that the Trademark Examining Attorney submitted a copy of
Registration No. 3611909 for the mark MIRAGEWEAR for hunting garments made
of mesh-woven, mixed fiber fabrics and polyester camouflage fabrics, namely,
ponchos. A poncho is often worn as a raincoat and, thus, may be considered to be
rainwear.3 While the goods are not specifically fabrics and clothing,
MIRAGEWEAR has some relevance because the registrant thought it important
enough to highlight the fabric comprising the clothing item, rather than just setting
forth ponchos.
The Trademark Examining Attorney also submitted the following Internet
evidence advertising camouflage fabrics used in rainwear:
1. A copy of a web page from AMAZON.com advertising the sale of
camouflage rainwear. See also the Alibaba.com webpage advertising camouflage
raincoats;

3 THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE (UNABRIDGED), p.
1502 (2nd ed. 1987). The Board may take judicial notice of dictionary definitions, Univ. of
Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703
F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
Serial No. 85478497

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2. A copy of a web page from SeattleFabrics.com advertising the sale of
outwear fabric for “custom jackets and other applications” including “Camo Fleece-
Super Waterproof/Breathable-Tex (2-Ply)” “perfect for hunting gear.” Seattle
Fabrics also advertised “CAMO Micro Suede Polyester” which it touted as a fabric
“perfect for clothing and other garments worn near the skin.”; and
3, A copy of a web page from FashionFabricsClub.com advertising
camouflage fabric for outerwear.
Applicant’s fabrics are clearly different than the rainwear in the cited
registration. However, it is undisputed that the fabric identified in the application
may be used to create rainwear. In cases with similar records, we have found that
fabrics and clothing are related. See Dan River, Inc. v. Apparel Unlimited, Inc., 226
USPQ 186, 190 (TTAB 1985) (“Dan'elle” for jeans is likely to cause confusion with
“Dan” for piece goods of cotton, rayon, or mixtures thereof, which includes denim
and other textiles used in manufacture of jeans where opposer advertised its fabric
for use in clothing, including hang tags indicating that the finished garments had
been manufactured with opposer’s fabric); In re Crompton Co., Inc., 221 USPQ 471,
472 (TTAB 1980) (confusion found likely in the contemporaneous use of REGENCY
for textile fabrics and REGENCY for women's sportswear; confusion found likely
also in the contemporaneous use of SPORTEEN for textile fabrics and SPORTEENS
for various items of clothing where Examining Attorney submitted advertisements
for clothing identifying its fabric); Warnaco Inc. v. Adventure Knits, Inc., 210 USPQ
307, 315 (TTAB 1981) (LUV TOUCH for knitted piece goods is likely to cause
Serial No. 85478497

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confusion with LOVE TOUCH for brassieres where the fabric is used to advertise
the product). In fact the Board has previously noted that clothing and the fabric
from which it is made are inherently related products.; In re Mangel Stores Corp.,
165 USPQ 22 (TTAB 1970) (confusion found likely in the contemporaneous use of
PRESSCOTT for various clothing items and PRESCOTT for cotton piece goods
because “there is an obvious intimate commercial relationship between piece goods
and articles of apparel”); In re Regal Garment Corp., 122 USPQ 397, 398 (TTAB
1959) (“In view of the common practice of fabric manufacturers supplying tags for
use by garment manufacturers in connection with finished apparel, it seems
inevitable that purchasers of wearing apparel would attribute common origin to
‘KISMET’ silk, ‘KISMET’ synthetic fabrics and ‘KISMET CASHMERE’ when they
are made into finished apparel, such as dresses on the one hand and ladies’ coats on
the other.”).
In view of the foregoing, we find that the goods are sufficiently related.
C. Established, likely-to-continue channels of trade.
Applicant focuses its argument that there is no likelihood of confusion on the
channels of trade noting that its description of goods is for the commercial
manufacture of products by commercial manufacturers.
It is the commercial manufactures that are buying a
fabric line that will be incorporated into the identified
clothing items. The individual clothing items will be sold
under the retailers branding to the consumers.
* * *
… it is the commercial manufacturers that are the
applicant’s customers. There is absolutely no
Serial No. 85478497

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circumstance that the applicant’s defined goods will be
marketed to the defined market of commercial
manufacturers that would give rise to the mistaken belief
to these consumers that the goods come from a common
source as the raingear of cited registrations as the cited
registrations are clearly never to be marketed to such
commercial manufacturers.4
The essence of applicant’s argument is that applicant’s products move in the
defined channel of trade set forth in applicant’s description of goods and,
presumably, that the ultimate consumer will not encounter applicant’s mark.5
However, in one of several examples, the Trademark Examining Attorney
submitted an excerpt from the Gore-Tex.com website advertising GORE-TEX fabrics
used in connection with different clothing products. In fact, as noted above,
applicant’s specimen is a hangtag which may be placed on finished products. The
examining attorney asserts that “applicant’s specimens of use in the present
application clearly demonstrate that the mark is presented to the purchasers of the
finished clothing articles to identify the fabric used in making the clothing.”6
Applicant did not dispute this characterization of the specimen and the specimen
includes the wording “Officially Licensed Product.” Thus, although applicant
contends that “[t]he examiner is attempting to base the refusal on some remote
potential third party usage, which itself is not fairly supported by the record,”
applicant’s own specimen of record supports this conclusion.7

4 Applicant’s Brief, p. 2.
5 Applicant’s Brief, p. 2.
6 Trademark Examining Attorney’s Brief, p. 11.
7 Applicant’s Brief, p. 3.
Serial No. 85478497

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While applicant is correct that we analyze the du Pont factors based on the
goods as identified, this does not preclude us from looking at evidence to understand
how these goods and their accompanying marks travel through channels of trade in
a particular industry. We further note that applicant’s identification of goods does
not preclude licensing and use of its mark downstream where registrant’s retail
consumers will be exposed to applicant’s mark on rainwear. Therefore, the same
consumers could encounter the marks under circumstances likely to give rise to the
mistaken belief that the fabric and the raingear emanate from the same source even
though applicant’s fabrics are sold only to manufacturers.
[I]t is not an uncommon marketing practice in the
clothing field to identify the fabric from which clothing
items are made, including identifying the marks
associated with such fabrics, in the advertisements for the
finished clothing items. This tends to show that
consumers of finished clothing items do come in contact
with the finished clothing items and the mark used in
connection with the fabric from which the clothing items
are made.
In re Crompton Company, Inc., 221 USPQ at 472.
In view of the foregoing, we find that the goods may move in the same
channels of trade.
D. The conditions under which and buyers to whom sales are made (i.e.,
“impulse” vs. careful, sophisticated purchasing).

Applicant argues that because its customers are limited to commercial
manufacturers, they are sophisticated, careful purchasers thereby minimizing the
likelihood of confusion.8 While that may be true, applicant’s mark appears on

8 Applicant’s Brief, p. 4.
Serial No. 85478497

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hangtags affixed to finished products that may be sold to any consumer of
camouflage product who may believe that the MARSHLAND fabric is somehow
associated with the MARSHLANDER raingear.
E. Lack of any reported instances of confusion.
Applicant argues that its MARSHLAND fabrics and registrant’s
MARSHLANDER raingear have coexisted for “several full clothing seasons” without
any reported instances of confusion.9 Applicant claimed February 11, 2011 as its
dates of first use anywhere and in commerce. Thus, at the time applicant filed its
brief, there had been two years of simultaneous use and without any evidence
regarding the extent of the advertising and sales of applicant and registrant, there
appears to have been little opportunity of confusion to have occurred.
[A]pplicant's assertion that it is unaware of any actual
confusion occurring as a result of the contemporaneous
use of the marks of applicant and registrant is of little
probative value in an ex parte proceeding such as this
where we have no evidence pertaining to the nature and
extent of the use by applicant and registrant (and thus
cannot ascertain whether there has been ample
opportunity for confusion to arise, if it were going to); and
the registrant has no chance to be heard from (at least in
the absence of a consent agreement, which applicant has
not submitted in this case). See: In re Sieber & McIntyre,
Inc., 192 USPQ 722 (TTAB 1976). Moreover, the test
under Section 2(d) of the Statute is not actual confusion
but likelihood of confusion.
In re Kangaroos U.S.A., 223 USPQ 1025, 1026-27 (TTAB 1984). While evidence of
actual confusion would strongly support a likelihood of confusion, the absence of any
reported instances of confusion does not necessarily overcome a finding of likelihood

9 Applicant’s Brief, p. 4.
Serial No. 85478497

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of confusion. Giersch v. Scripps Networks Inc., 90 USPQ2d 1020, 1027 (TTAB
2009).
E. Balancing the factors.
Because the marks are similar, the goods are related and may be encountered
by the same consumers under circumstances likely to lead to the mistaken belief
that the products emanate from the same source, we find that applicant’s mark
MARSHLAND and design for “fabrics for the commercial manufacture of
camouflage articles by commercial manufacturers; textile fabrics for the commercial
manufacture of clothing by commercial manufacturers; textile fabrics for use in the
commercial manufacture of garments, bags, jackets, gloves, and apparel by
commercial manufacturers; camouflage fabric for use as a textile in the commercial
manufacture of hunter clothing and hunter accessories by commercial
manufacturers” is likely to cause confusion with the mark MARSHLANDER and
design for raingear.
Decision: The refusal to register applicant’s mark is affirmed.