Olin Corporationv.S.A.T. Arms Technology

Trademark Trial and Appeal Board

Sep 17, 2008

No. 91172517 (T.T.A.B. Sep. 17, 2008)

Mailed:
September 17, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Olin Corporation
v.
S.A.T. Arms Technology
_____

Opposition No. 91172517
to application Serial No. 78287351
filed on August 14, 2003
_____

Bryan K. Wheelock of Harness, Dickey & Pierce, P.L.C. for
Olin Corporation.

Martin Fleit of Fleit Gibbons Gutman Bongini & Bianco for
S.A.T. Arms Technology.
______

Before Rogers, Drost and Bergsman, Administrative Trademark
Judges.

Opinion by Bergsman, Administrative Trademark Judge:

S.A.T. Arms Technology (“applicant”) filed an
application under Section 44(d) of the Trademark Act of
1946, 15 U.S.C. §1126(d), for the mark “X” and design, shown
below for goods ultimately identified as follows:
Directional compasses; laser telescopic gun sights;
electronic shot counters for counting shots fired from
firearms; optical apparatus, namely telescopic gun
sights, binoculars, and night vision goggles;
electromechanical controls for use in positioning
guidance and protection for shoulder arms and handguns;
simulation apparatus for shooting firearms; video game
discs and cartridges; interactive video games of
virtual reality firearm shooting comprised of computer
hardware and software; software for simulating shooting
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Opposition No. 91172517
2
firearms, and spare/replacement parts for the above
stated goods, in Class 9;
Firearms; air weapons, namely, air guns, starter
pistols, signal guns, signal pistols; bullets and
ammunition; accessories for the above stated goods,
namely, rifle cases, rifle covers, cartridge pouches,
rifle sling straps, and cases for cartridges, in Class
13;
Toys, namely, toys pistols, rifles, and machine guns;
toy handguns; toy firearms; toy bullets and ammunition;
toy firearms for use with stand alone video game
machines with electronic targets; spare/replacement
parts for the above stated goods , in Class 28; and,
Communication services, namely, electronic transmission
of data and documents among computers and users of
computers; delivery of messages by electronic
transmission; electronic transmission of data and
documents via computer terminals; electronic
transmission of messages and data, in Class 38.

Applicant described its mark as the letter “X” over a lined
circle with three bullet holes.
Olin Corporation (“opposer”) has opposed the
registration of applicant’s mark on the grounds of priority
and likelihood of confusion and dilution. Specifically,
opposer alleged that since long prior to the filing date of
Opposition No. 91172517
3
applicant’s application, it has been using numerous “X”
marks comprising a family of “X” marks, in connection with
“firearms and ammunition and other hunting or shooting
related items”; that opposer’s “X” family of marks is
famous;1 and that applicant’s mark is likely to cause
confusion with and dilute the distinctiveness of the marks
comprising opposer’s “X” family of marks.
Applicant denied the salient allegations in the notice
of opposition. Both parties filed briefs.
Preliminary Issues
A. The classes of goods and services opposed.
Applicant’s application is for goods and services
categorized in four International Classes: 9, 13, 28 and 38.
In its notice of opposition, opposer did not identify which
classes of goods and services it was opposing, and in its
brief, opposer simply referenced firearms and ammunition
that fall in Class 13.2 However, we note that (1) in the
“Goods/Services Affected by Opposition” on the ESTTA filing
system cover sheet accompanying its notice of opposition,

1 Because opposer did not allege that any one of its “X” marks or
that its “X” family of marks became famous before the filing date
of applicant’s application, opposer has failed to properly plead
a cause of action under dilution. Section 43(c) of the Trademark
Act of 1946, 15 U.S.C. §1125(c) (“the owner of a famous mark . .
. shall be entitled to an injunction against another person who,
at any time after the owner’s mark has become famous, commences
use of a mark or trade name in commerce that . . .”)(emphasis
added) made applicable by Section 13 of the Trademark Act of
1946, 15 U.S.C. §1063(a).

2 Opposer’s Trial Brief, pp. 16-18.
Opposition No. 91172517
4
opposer identified the goods in Classes 13 and 28; and (2)
opposer submitted a $600 filing fee, the fee required to
oppose two classes of goods and services. Accordingly, we
construe opposer’s notice of opposition as opposing only the
registration of applicant’s mark for the goods identified in
Classes 13 and 28.
B. The introduction of evidence through notices of
reliance.

Trademark Rule 2.122(e), 37 CFR §2.122(e), provides
that the parties may introduce through a notice of reliance
printed publications, such as books and periodicals,
available to the general public in libraries or in general
circulation among members of the public, and official
records. “Evidence not obtained and filed in compliance
with these sections will not be considered.” Cf Trademark
Rule 2.123(l), 37 CFR 2.123(l).
Both parties submitted notices of reliance comprising
documents not contemplated within the Trademark Rules of
Practice and Procedure for such submission. The parties did
not file a motion or stipulation agreeing to the
introduction of such documents through a notice of reliance.
We note, however, that neither party objected to the notices
of reliance and that they treated all documents submitted by
notices of reliance as being of record. Accordingly, we
deem the parties to have stipulated to the introduction of
all documents through notices of reliance.
Opposition No. 91172517
5
The Record
By rule, the record includes applicant’s application
file and the pleadings. Trademark Rule 2.122(b), 37 CFR
§2.122(b). As indicated above, both parties have submitted
evidence through notices of reliance. Neither party took
testimony. We will address opposer’s objections to
applicant’s evidence as necessary in our discussion of the
evidence bearing on the issues in this case.
Standing
Opposer introduced certified copies of its pleaded
registrations prepared by the U.S. Patent and Trademark
Office showing their current status and title. Because
opposer has properly made its pleaded registrations of
record, opposer has established its standing. Cunningham v.
Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed.
Cir. 2000); Lipton Industries, Inc. v. Ralston Purina Co.,
670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982).
Priority

Because opposer’s pleaded registrations are of record,
Section 2(d) priority is not an issue in this case. King
Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182
USPQ 108 (CCPA 1974).
Likelihood of Confusion
Our determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are
Opposition No. 91172517
6
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).
A. Whether opposer has proven that it has a family of
marks?

Opposer has alleged that it “has had a long history of
using ‘X’ marks and has created a family of X mark for
ammunition, firearms and related products.”3 Opposer
contends that because it “often marks its packages with one
or more of its ‘X’ marks” and because its “X” marks are
inherently distinctive and promoted together, opposer has
established that it has a family of X marks.4
The Court of Appeals for the Federal Circuit has
defined a family of trademarks as follows:
A family of marks is a group of
marks having a recognizable common
characteristic, wherein the marks
are composed and used in such a way
that the public associates not only
the individual marks, but the
common characteristic of the
family, with the trademark owner.
Simply using a series of similar
marks does not of itself establish
the existence of a family. There

3 Notice of opposition, ¶5.

4 Opposer’s Trial Brief, pp. 13-14. See also Opposer’s Reply
Brief, p. 14 (“The numerous advertisements and product packaging
submitted into evidence by Olin is proof that many of the marks
in the family are used and promoted together in such a way as to
create a public association between the ‘X’ marks and Olin”).
Opposition No. 91172517
7
must be a recognition among the
purchasing public that the common
characteristic is indicative of a
common origin of the goods. . . .
Recognition of the family is
achieved when the pattern of usage
of the common element is sufficient
to be indicative of the origin of
the family.

J & J Snack Foods Corp. v. McDonald’s Corp., 932 F.2d 1460,
18 USPQ2d 1889, 1891 (Fed. Cir. 1991).
In order to create the requisite recognition of the
common element of the marks or “family surname,” the common
element must be so extensively advertised that the public
recognizes the “family surname” as a trademark. Reynolds &
Reynolds Co. v. I.E. Systems, Inc., 5 USPQ2d 149, 1751 (TTAB
1987). The Board has explained the requirements as follows:
In order to establish a “family of
marks,” it must be demonstrated that the
marks asserted to comprise its “family”
or a number of them have been used and
advertised in promotional material or
used in everyday sales activities in
such a manner as to create common
exposure and thereafter recognition of
common ownership based upon a feature
common to each mark.

American Standard Inc. v. Scott & Fetzer Co., 200 USPQ 457,
461 (TTAB 1978). In the absence of direct testimony by
purchasers, we must place ourselves in the position of
average consumers and attempt to understand their reaction
to the marks as they are encountered in the marketplace.
Id. In this regard, the mere fact that opposers have
registered many of the purported “family” members is not
Opposition No. 91172517
8
sufficient to prove that a family of marks exists.
Consolidated Foods Corp. v. Sherwood Industries, Inc., 177
USPQ 279, 282 (1973)(“the registrations, per se, are
manifestly incompetent to establish the extent of use of the
registered marks, whether one or more of the registered
marks have been promoted, advertised, used or displayed in
any manner likely to cause an association or ‘family’ of
marks, or that, at the least, a good number of the
registrations have become known or familiar to purchasers of
frozen confections and the like”).
Based on this record, opposer has not proven that it
has a family of marks. First, opposer has never identified
the common characteristic of its marks. Presumably, opposer
is arguing that the letter “X” is the common characteristic
of its family of marks, and that therefore the public will
associate any mark that has the letter “X” anywhere in it
used in connection with firearms and ammunition with
opposer.
Second, with only few exceptions, opposer has not used
and advertised its “X” marks together in such a manner as to
create common exposure and recognition of common ownership
based upon the use of the letter “X.” Opposer’s evidence
supporting its family of “X” marks consists of the following
documents:
Opposition No. 91172517
9
1. Opposer’s packaging and an advertisement that show
two different versions of its SUPER-X mark
(Exhibit 208);

2. An advertisement touting opposer’s brands,
including SUPER-X and XPERT (Exhibit 211); and,

3. An excerpt from opposer’s website (Exhibit 250)
advertising opposer’s brands, including SUPER-X,
XPERT and “XP3.”

However, the record is silent regarding the extent of
opposer’s advertising of its multiple “X” marks and there
are simply not enough examples of opposer’s “X” marks
advertised or promoted together. The promotional activity
showing the use of opposer’s multiple “X” marks is not
sufficient in quantity or quality to establish in
purchasers’ minds a recognition or awareness of the
existence of a family of marks. Therefore, the record in
this case falls short of presenting the type of evidence
necessary to support opposer’s allegation that it has a
“family” of “X” trademarks.
With respect to how opposer uses its “X” marks
together, the packaging shown below is representative. As
illustrated below, opposer often uses two different versions
of its SUPER-X mark on the same package. However, consumers
will not perceive the two versions of SUPER-X as different
marks; they will perceive them as variations of one mark.
Opposition No. 91172517
10

By the same token, we do not believe that consumers
will perceive the letter “X,” in the CXP series of marks
displayed on the package above, as a common feature of the
marks CXP and SUPER-X. We do not believe that there is a
discernable pattern in opposer’s use of CXP and SUPER-X to
establish that the letter “X” is a common feature of a
family of marks.
Likewise, we do not believe that consumers will
perceive the “X” in XPERT and SUPER-X, as displayed in the
excerpt of opposer’s website shown below, as common features
of the two marks indicating common ownership.
Opposition No. 91172517
11

On the other hand, opposer has promoted SUPER-X and
“XP3” together on its website as shown below.

In view of the foregoing, we find that opposer has not
proven that it has a family of “X” marks. Accordingly,
opposer’s claim of likelihood of confusion must be based
solely on its use of the individual “X” trademarks. In this
regard, we focus our likelihood of confusion analysis on the
following federally-registered marks because they are closer
in appearance to applicant’s mark than opposer’s other
pleaded marks:
Opposition No. 91172517
12
1. DOUBLE X, in typed drawing form, for
“ammunition”;5

2. SUPER-X, in typed drawing form, for “firearms,
namely, shotguns”;6

3. SUPER-X, in typed drawing form, for “shot shells,
rifle and pistol cartridges”;7 and,

4. XX, shown below, for “ammunition.”8

B. Whether opposer’s “X” marks are famous?
This du Pont factor requires us to consider the fame of
opposer’s marks. Fame, if it exists, plays a dominant role
in the likelihood of confusion analysis because famous marks
enjoy a broad scope of protection or exclusivity of use. A
famous mark has extensive public recognition and renown.
Bose Corp. v. QSC Audio Products Inc., 293 F.3d 1367, 63
USPQ2d 1303, 1305 (Fed. Cir. 2002); Recot Inc. v. M.C.
Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1897 (Fed. Cir.
2000); Kenner Parker Toys, Inc. v. Rose Art Industries,
Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed. Cir. 1992).

5 Registration No. 1027881, issued December 23, 1975; Sections 8
and 15 affidavits accepted and acknowledged; second renewal.

6 Registration No. 0998963, issued November 26, 1974; Sections 8
and 15 affidavits accepted and acknowledged; second renewal.

7 Registration No. 0573211, issued April 14, 1953; Sections 8 and
15 affidavits accepted and acknowledged; third renewal.

8 Registration No. 1027880, issued December 23, 1975; Sections 8
and 15 affidavits accepted and acknowledged; second renewal.
Opposition No. 91172517
13
Although opposer has designated its revenues as
confidential, and therefore we do not reveal those figures,
we, nevertheless find that opposer has enjoyed great success
in connection with its sales of ammunition. On the other
hand, we note that while in the past raw sales figures may
have sufficed to prove fame, in today’s marketing
environment, raw numbers alone may be misleading.
“Consequently, some context in which to place raw statistics
is reasonable.” Bose Corp. v. QSC Audio Products Inc., 63
USPQ2d at 1309. In this regard, opposer has not provided
any evidence of its market share in which to place the
context of its sales.
Also, we note that opposer has not provided any
advertising figures. Opposer contends, without any
evidence, that it has spent “considerable money, time and
energy marketing its products.”9 Opposer points to its
press releases that make reference to the “strong
reputation” of its “X” brand.10 However, self-serving
statements in press releases are more in the nature of
advertising puffery than probative evidence of public
recognition of opposer’s marks.
Opposer contends that its “X” marks have attracted
substantial unsolicited third-party media coverage.11 In

9 Opposer’s Trial Brief, p. 9.
10 Opposer’s Trial Brief, p. 9.
11 Opposer’s Trial Brief, p. 10.
Opposition No. 91172517
14
this regard, opposer submitted 19 articles from periodicals
that have referenced one of opposer’s “X” brands. The
articles merely reference “X” brand ammunition as an aside
or as part of a product review. With the exception of one
reference to SUPER-X as “an old favorite” (Exhibit 237),
there is nothing in the articles from we which we can infer
that the “X” marks have achieved extensive public
recognition and renown.12
Opposer has not presented sufficient evidence to show
that any one of its “X” marks is famous. While there is
some evidence regarding opposer's sales, there is nothing
regarding opposer's advertising expenditures or public
recognition and renown of the marks. While there is no
doubt that opposer has enjoyed considerable success selling
ammunition, we do not believe that this success translates
to fame for opposer’s marks. Without any evidence relating

12 The Google search summary (Exhibit 249) introduced by opposer
has no probative value. First, a search result summary from an
Internet search engine, such as Yahoo! or Google, that shows use
of a term or phrase as the search query used by the search
engine, is of limited evidentiary value. These summaries
generally do not provide sufficient text within which to
determine the nature and relevance of the term or phrase. In re
Fitch IBCA, Inc., 64 USPQ2d 1058, 1060 (TTAB 2002); In re
Remacle, 66 USPQ2d 1222, 1223 n.2 (TTAB 2002). Thus, they are
considerably less probative than showing actual use of the term
or phrase within the context of a website or webpage. Second, to
the extent the summaries are comprehensible, none of them prove
that opposer’s “X” marks have achieved extensive public
recognition and renown. Finally, to the extent that opposer’s
search generated over 75,000 hits, we note that the search term
was “Olin Winchester X” and that any one of these terms could
have retrieved a hit. Moreover, there is no indication of how
many of the hits are duplicates.
Opposition No. 91172517
15
to the extent of opposer’s advertising, market share, or
unsolicited favorable publicity (i.e., the degree of
recognition of opposer’s marks), we cannot find on this
record that consumers have been so exposed to any of
opposer’s “X” marks, that they can be considered famous for
purposes of our likelihood of confusion analysis.13 Cf Bose
Corp. v. QSC Audio Products, Inc., 63 USPQ2d at 1305-1309.
C. The similarity or dissimilarity and nature of the
goods.

Opposer has registered its marks for firearms and
ammunition. Applicant is seeking to register its mark for,
among other things, firearms, ammunition, toy firearms and
toy ammunition. Accordingly, with respect to the firearms
and ammunition, the parties’ products are in part identical.

13 With respect to opposer’s dilution claim, we note that fame for
likelihood of confusion and dilution is not the same. Fame for
dilution requires a more stringent showing. Palm Bay Imports
Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005); Toro Co. v. ToroHead
Inc., 61 USPQ2d 1164, 1170 (TTAB 2001). Likelihood of confusion
fame “varies along a spectrum from very strong to very weak”
while dilution fame is an either/or proposition – it either
exists or it does not exist. Id. See also Carefirst of Maryland
Inc. v. FirstHealth of the Carolinas Inc., 77 USPQ2d 1492, 1507
(TTAB 2005) (likelihood of confusion “[f]ame is relative . . .
not absolute”). A mark, therefore, may have acquired sufficient
public recognition and renown to be famous for purposes of
likelihood of confusion without meeting the more stringent
requirement for dilution fame. Toro Co. v. ToroHead Inc., 61
USPQ2d at 1170, citing I.P. Lund Trading ApS v. Kohler Co., 163
F.3d 27, 47 USPQ2d 1225, 1239 (1st Cir. 1998) (“[T]he standard for
fame and distinctiveness required to obtain anti-dilution
protection is more rigorous than that required to seek
infringement protection”). Because, on this record, opposer has
not proven that any of its marks are famous for purposes of
likelihood of confusion, it will not be able to prove that any of
its marks are famous for purposes of proving its dilution claim.
Opposition No. 91172517
16
On the other hand, with respect to applicant’s toy
firearms and ammunition, there is no evidence that the goods
are similar or related.14 For example, there is no evidence
that any business makes and sells guns and ammunition under
the same mark as toy guns and ammunition. Without evidence,
we cannot simply assume that purchasers expect a common
source to provide both real guns and ammunition and toy guns
and ammunition, even if they were sold under identical
marks. See Steve’s Ice Cream v. Steve’s Famous Hot Dogs, 3
USPQ2d 1477, 1478 (TTAB 1987).
In view of the foregoing, we find that with respect to
firearms and ammunition, in Class 13, the identity of the
goods favors finding that there is a likelihood of
confusion. However, with respect to opposer’s firearms and
ammunition, in Class 13 and applicant’s toy firearms and
ammunition, in Class 28, we find that opposer has not met
its burden of proving that these products are similar or
related, and therefore this factor favors finding that there
is no likelihood of confusion.
D. The similarity or dissimilarity of established, likely-
to-continue trade channels and classes of consumers.

1. Real firearms and ammunition in Class 13.

With respect to firearms and ammunition, because we
have found that the products listed in the opposer’s

14 In fact, opposer did not even reference applicant’s toy guns
and ammunition in its brief.
Opposition No. 91172517
17
registrations and applicant’s application are in part
identical, we must presume that the channels of trade and
classes of purchasers are the same. Genesco Inc. v. Martz,
66 USPQ2d 1260, 1268 (TTAB 2003) (“Given the in-part (sic)
identical and in-part (sic) related nature of the parties’
goods, and the lack of any restrictions in the
identifications thereof as to trade channels and purchasers,
these clothing items could be offered and sold to the same
classes of purchasers through the same channels of trade”);
In re Smith and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994)
(“Because the goods are legally identical, they must be
presumed to travel in the same channels of trade, and be
sold to the same class of purchasers”).
2. Opposer’s real firearms and ammunition in Class 13
vs. applicant’s toy firearms and ammunition in
Class 28.

Opposer has proffered no evidence regarding how or why
the channels of trade and classes of consumers for its
firearms and ammunition are similar to the channels of trade
and classes of consumers for applicant’s toy firearms and
ammunition. Accordingly, opposer has not met its burden of
proving that the channels of trade and classes of consumers
for these products are similar, and therefore this factor
favors finding that there is no likelihood of confusion.
Opposition No. 91172517
18
E. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We now turn 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., 9
USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co., 6
USPQ2d 1041, 1042 (TTAB 1988). In comparing the marks, we
are mindful that where both parties sell the same products
(firearms and ammunition in Class 13), the degree of
similarity necessary to find likelihood of confusion need
not be as great as where there is a recognizable disparity
between the goods. Century 21 Real Estate Corp. v. Century
Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed.
Cir. 1992); Real Estate One, Inc. v. Real Estate 100
Enterprises Corporation, 212 USPQ 957, 959 (TTAB 1981); ECI
Division of E-Systems, Inc. v. Environmental Communications
Incorporated, 207 USPQ 443, 449 (TTAB 1980).
In addition, 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 so that
Opposition No. 91172517
19
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). The
proper focus is on the recollection of the average customer,
who retains a general rather than specific impression of the
marks. Winnebago Industries, Inc. v. Oliver & Winston,
Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). With
respect to the firearms and ammunition in Class 13, the
relevant public would be hunters and sportsmen who purchase
guns and ammunition. On the other hand, with respect to
applicant’s toy guns and ammunition in Class 28, the
relevant public would include not only hunters and
sportsmen, but it would include children and parents.
The visual appearance of the parties’ marks are similar
because they are dominated by the letter “X.” See In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985) (“there is nothing improper in stating that, for
rational reasons, more or less weight has been given to a
particular feature of a mark”). Applicant’s mark, shown
below, is the letter “X” and design.
Opposition No. 91172517
20

Applicant contends that its mark is a design mark, and
not the letter “X”.
Applicant’s mark consists solely of
design elements, creating an entirely
different commercial impression from any
of Opposer’s marks. Applicant’s mark is
not a mark that can be easily described
with words. The fact that the Applicant
described its mark in its application
before the USPTO as an “‘X’ over a lined
circle with three bullet holes” is not
dispositive of how the consumers would
call for the goods. This description is
for USPTO administrative purposes and
is, in fact, now required by Trademark
Rules of Practice, 37 C.F.R. §2.37 and
2.52(5).15 The dispositive question is
how the consumer views the mark. The
consumer is likely to view the mark as a
composite design consisting of a circle
intersected with 2 bars that cross one
another and with 3 dots or holes or
smaller circles, 2 of which are in the
center intersection of the crossing bars
and 1 which is to the left of the
crossing bars. Consumers might also
refer to the crossing bars as a skewed
X. There is, however, no evidence in
the record that consumers would call for
Applicant’s goods by the letter X.16

15 Trademark Rule 2.37 provides, in relevant part, that “[a]
description of the mark must be included if the mark is not in
standard characters.” Trademark Rule 2.52(b)(5) provides that a
mark comprising design elements must include a description of the
mark.

16 Applicant’s Brief, p. 13-14.
Opposition No. 91172517
21
Applicant’s argument strains credulity. Despite its
protestations, applicant’s mark is clearly a stylized letter
“X.” Statements made by the applicant during the
prosecution of its application may be used by the opposer as
evidence against the applicant, in the nature of an
admission against interest.17 See Eikonix Corp. v. CGR
Medical Corp., 209 USPQ 607, 613 n.7 (TTAB 1981). See also
Specialty Brands, Inc. v. Coffee Bean Distributors, Inc.,
748 F.2d 669, 223 USPQ 1281, 1283 (Fed. Cir. 1984), quoting
Interstate Brands Co. v. Celestial Seasonings, Inc., 576
F.2d 926, 198 USPQ 151, 154 (CCPA 1978) (applicant’s earlier
contrary position before the Examining Attorney as to the
meaning of its mark illustrates the variety of meanings that
may be attributed to, and commercial impression projected
by, applicant’s mark). If applicant’s mark was not, in
fact, the letter “X” accompanied by other design elements,
then applicant should have identified it as two crossing
bars with other elements as it has argued before us.

17 By the same token, similar statements by applicant describing
its mark in an opposition proceeding to opposer’s European
Community Trademark Office application “may be received in
evidence as merely illuminative of shade and tone in the total
picture confronting the decision maker. To that limited extent,
a party’s earlier contrary opinion may be considered relevant and
competent.” Interstate Brands Co. v. Celestial Seasonings, Inc.,
576 F.2d 926, 198 USPQ 151, 154 (CCPA 1978). See also Oral
Surgeons v. Oral and Maxillofacial Surgeons, 201 USPQ 531, 533
(TTAB 1979) (information concerning controversies between a party
and third parties based upon the party’s mark may be relevant to
show an admission against interest).
Opposition No. 91172517
22
With respect to opposer’s SUPER-X marks, the letter “X”
is the dominant part of those marks because the word “super”
modifies the letter “X” telling consumers that the product
is of superior quality.18 By the same token, the letter “X”
is the dominant portion of opposer’s DOUBLE X mark because
the word “double” modifies the letter “X” telling consumers
that the product is twofold bigger or better. Finally, the
letter “X” is the dominant portion of opposer’s XX mark,
shown below, because the mark is two Xs.

Because the letter “X” is the dominant portion of the
marks, this implies that the marks will have phonetic
identity because consumers will refer to the letter “X” in
calling for the products as “X,” SUPER-X or DOUBLE X.
There is nothing in the record to show that the letter
“X” has any descriptive significance in connection with guns
and ammunition. Accordingly, applicant’s mark and opposer’s
registrations are considered arbitrary marks engendering
similar meanings and commercial impressions.

18 The word “super” means “an article of superior quality, grade,
size, etc.” The Random House Dictionary of the English Language
(Unabridged), p. 1907 (2nd ed. 1987). The Board may take judicial
notice of dictionary evidence. University of Notre Dame du Lac
v. J.C. Gourmet Food Imports Co., 213 USPQ 594 (TTAB 1982),
aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
Opposition No. 91172517
23
In view of the foregoing, we find that the similarity
of the marks favors finding that there is a likelihood of
confusion.
F. Balancing the factors.
1. Ammunition and firearms, in Class 13.
In view of the similarity of the marks, the identity of
the goods, and the presumption that the goods are sold in
the same channels of trade and to the same classes of
consumers, we find that applicant’s X and design mark for
the firearms and ammunition, in Class 13, is likely to cause
confusion with opposer’s SUPER-X, DOUBLE X, and XX and
design marks for firearms and ammunition.
2. Toy firearms and ammunition, in Class 28.
Although the marks are similar, because the goods,
channels of trade, and classes of consumers are different,
we find that the marks would not be encountered by the same
consumers under circumstances likely to give rise to the
mistaken belief that real firearms and ammunition and toy
firearms and ammunition emanate from a single source.
Accordingly, we find that applicant’s X and design mark for
toy firearms and ammunition, in Class 28, is not likely to
cause confusion with opposer’s SUPER-X, DOUBLE X and XX and
design marks for real firearms and ammunition.
Opposition No. 91172517
24
Dilution
In addition to its Section 2(d) claim, opposer has
asserted a dilution claim. The Lanham Act provides for a
cause of action for the dilution of famous marks. Sections
13 and 43(c) of the Trademark Act of 1946, 15 U.S.C. §§1063
and 1125(c).
The Lanham Act provides as follows:19
Subject to the principles of equity, the
owner of a famous mark that is
distinctive, inherently or through
acquired distinctiveness, shall be
entitled to an injunction against
another person who, at any time after
the owner's mark has become famous,
commences use of a mark or trade name in
commerce that is likely to cause
dilution by blurring or dilution by
tarnishment of the famous mark,
regardless of the presence or absence of
actual or likely confusion, of
competition, or of actual economic
injury.

Our dilution analysis, therefore, requires
consideration of the following issues:
1. Whether any of opposer’s “X” marks is famous;

2. Whether any of opposer’s “X” marks became famous
prior to the filing date of applicant’s “X” and
design trademark application; and,

3. Whether applicant’s “X” and design mark is likely
to cause dilution by blurring of the
distinctiveness of opposer’s “X” marks.

7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1727 (TTAB 2007).

19 Section 43(c) as it pertains to dilution has been amended
effective October 6, 2006.
Opposition No. 91172517
25
As indicated above, since we have already determined
that none of opposer’s “X” marks are famous for purposes of
likelihood of confusion, and because the requirements for
proving fame for dilution are more stringent than the
requirements for proving “fame” for likelihood of confusion,
opposer cannot prove that its mark is famous for purposes of
dilution. Accordingly, opposer has not proven that the
registration of applicant’s mark will dilute any of its “X”
marks.
Decision: The opposition to the registration of
applicant’s mark is sustained in connection with the goods
in Class 13.
The opposition to the registration of applicant’s mark
is dismissed in connection with the goods in Class 28.
The application will be forwarded for registration
processing in Classes 9, 28, and 38.