Pacific Sunwear of California, Inc.v.AIT, Inc.

Trademark Trial and Appeal Board

Feb 18, 2004

No. 91111244 (T.T.A.B. Feb. 18, 2004)

Mailed: 18 FEB 2004
Paper No. 52
AD
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Pacific Sunwear of California, Inc.
v.
AIT, Inc.
_____
Opposition No. 91111244
to application Serial No. 75323781
_____
Matthew D. Murphey of Murphey & Murphey, A.P.C. for Pacific
Sunwear of California, Inc.
Ira S. Dorman, Esq. for AIT, Inc.
______
Before Hohein, Rogers and Drost, Administrative Trademark
Judges.
Opinion by Drost, Administrative Trademark Judge:
AIT, Inc. (applicant) applied to register the mark PAC
AIT in typed form for “men’s, women’s and children’s
clothing, namely, shirts, sweatshirts, T-shirts, jackets,
coats, robes, sweaters, hats, caps, skirts, dresses,
sweatpants, trousers, slacks, shorts, sleepwear, and
neckwear” in International Class 25.1
1 Serial No. 75323781, filed July 14, 1997. The application
contains an allegation of a bona fide intention to use the mark
in commerce.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Opposition No. 91111244
2
Pacific Sunwear of California, Inc. (opposer) opposed
the registration of applicant’s mark. In its notice of
opposition, opposer alleges that it “has engaged, is now
engaged, and plans to continue to engage in the services of
advertising, sale, and marketing of clothing, namely, pants,
shirts, shorts, hats, swimwear, T-shirts, jackets, sweat
shorts, tank tops, sport shirts, wind resistant jackets,
jogging suits and shoes” under the mark PAC SUN in typed
form in International Class 25.2 Opposition at 2. Opposer
also maintains that it “has used and is now using the
trademark ‘PAC SUN®’ in doing business in the clothing
industry” and that potential customers have “come to know
and recognize Opposer’s service mark and services and to
associate them with Opposer and the goods sold by Opposer.”
Opposition at 2-3. Applicant denied the salient allegations
of the notice of opposition.
The Record
The record consists of the following items: the file
of the involved application; the testimony deposition of
opposer’s president, Timothy Harmon, with accompanying
exhibits; opposer’s notices of reliance on the discovery
deposition of applicant’s principal, Conrad J. Kronholm, Jr.
with exhibit and applicant’s answers to opposer’s
Opposition No. 91111244
3
interrogatories; the “agreed upon” testimony of Conrad J.
Kronholm, Jr., with accompanying exhibits; and applicant’s
notice of reliance on opposer’s responses to applicant’s
request for admissions, opposer’s response to
interrogatories, and copies of third-party federal trademark
registrations.
Procedural Matters
Both parties have raised numerous evidentiary
objections to the other party’s evidence. Opposer “objects
to the testimonial Affidavit of Conrad J. Kronholm, Jr. and
exhibits … on the grounds of lack of foundation and
authentication under Rule 901, and lack of personal
knowledge.” Opposer’s Brief at 39. This affidavit was
submitted under an “Agreement as to Testimony.” The
parties’ attorneys agreed that the “testimony shall be
submitted in this Opposition in the form of the attached
Affidavit.” Trademark Rule 2.123(b) (“By written agreement
of the parties, the testimony of any witness or witnesses
may be submitted in the form of an affidavit”).3
2 Registration No. 1,613,010, issued September 11, 1990, renewed.
The registration contains an allegation of a date of first use
and first use in commerce of October 21, 1987.
3 In opposer’s reply at 1 (which we will consider), opposer
argues that “[w]hile it is true that Pac Sun stipulated to Pac
Ait’s request to use affidavit testimony, Pac Sun’s stipulation
did not include the inclusion of improper or objectionable
exhibits in that affidavit.” While opposer is perhaps
technically correct, it is a poor practice to agree to the
submission of testimony by affidavit without indicating in
advance that the party intends to raise a plethora of objections
to the affidavit after the defendant’s testimony period closes.
Opposition No. 91111244
4
Any “objection to testimony in affidavit form, which is
waived if not made at deposition, must be raised promptly
after receipt of the affidavit submission.” TBMP § 707.04.
Applicant’s notice of reliance was submitted on November 9,
2001, applicant’s testimony period closed on November 11,
2001, and opposer’s objections were filed on December 18,
2001. We find that the objections as to foundation and lack
of authentication are untimely. We also note that opposer’s
objection as to lack of personal knowledge of the witness is
based on the witness’s use of the passive voice in the
affidavit. Again, this objection should have been raised
earlier because it is likely that it could have been
obviated or removed at that time. Pass & Seymour, Inc. v.
Syrelec, 224 USPQ 845, 847 (TTAB 1984) (“[W]ith respect to
respondent’s objections on the grounds of improper
identification and/or authentication of exhibits and/or that
the exhibits were inadmissible hearsay with no foundation
laid for an exception to the hearsay rule[,]… [i]t is our
view that that all of respondent’s objections are of a type
that could have been remedied or obviated had they been made
during the taking of the deposition”). In addition, simply
because a witness uses the passive voice does not establish
Cf. Hercules Casualty Ins. Co. v. Preferred Risk Ins. Co., 337
F.2d 1, 4 n.3 (10th Cir. 1964) (“Subject to the objections of
materiality and relevancy it was stipulated that certain
affidavits could be, and were, received as the testimony of the
affiants”) (emphasis added).
Opposition No. 91111244
5
that the statement is not based on personal knowledge and
opposer’s objection to this testimony on this ground is
overruled.
Opposer’s objection as to the relevance of third-party
registrations and responses to requests for admissions are
overruled. While third-party registrations, by themselves,
cannot be used to justify the registration of a confusingly
similar mark, they are not irrelevant. They may be used in
connection with evidence of use to show that a term is not
entitled to a broad scope of protection and they may be used
to show the meaning of a term much as a dictionary is used.
In re Nashua Corporation, 229 USPQ 1022, 1023 (TTAB 1986)
(“Third-party registrations may provide some evidence as to
the meaning of a mark or portion of a mark in the same way
dictionaries are used. In this case they provide some
evidence that applicant and registrant, as well as others,
adopted marks beginning with "THERM" to convey a suggestion
of heat” (citation omitted)).
Opposer’s other objections to the admission of the
cross-examination of its witness, which are on the grounds
that it exceeds the scope of the direct examination, it
calls for speculation, or that it calls for a lay opinion,
are overruled. While we are not convinced that most of this
testimony is entitled to much weight, we will not exclude
it.
Opposition No. 91111244
6
We also overrule applicant’s motion to strike opposer’s
notice of reliance submitting the complete set of its
discovery responses, and as provided in Trademark
Rule 2.120(j)(5), we will exercise our discretion and
consider these responses. We also overrule applicant’s
objections to Mr. Harmon’s testimony on the ground of
hearsay, lack of foundation and relevance. Mr. Harmon, as
the president of opposer who was employed by opposer for ten
years, could testify regarding sales and advertising.
Harmon dep. at 7.
Finally, we note that on December 17, 2003, the Deputy
Commissioner for Trademark Examination Policy denied
opposer’s motion to reverse the Board’s previous order
granting applicant’s motion to strike opposer’s reply brief.
Therefore, we have not considered opposer’s reply brief.
Priority
In its notice of opposition, opposer refers to its
Registration No. 1,613,010 and attaches a plain copy of the
registration to its notice of opposition. Applicant, in its
answer, admitted that a copy of the registration was
attached to the notice of opposition. A plain copy of the
registration was also introduced during opposer’s
president’s testimony. Opposer’s witness answered in the
affirmative when asked whether he was familiar with the
registration and whether the dates of use in the
Opposition No. 91111244
7
registration were correct. Harmon dep. at 11. Opposer,
however, did not submit a status and title copy of the
registration.
Trademark Rule 2.122(d) provides that:
(1) A registration of the opposer or petitioner pleaded
in an opposition or petition to cancel will be received
in evidence and made part of the record if the
opposition or petition is accompanied by two copies
(originals and photocopies) of the registration
prepared and issued by the Patent and Trademark Office
showing both the current status of and current title to
the registration. For the cost of a copy of a
registration showing status and title, see § 2.6(b)(4).
(2) A registration owned by any party to a proceeding
may be made of record in the proceeding by that party
by appropriate identification and introduction during
the taking of testimony or by filing a notice of
reliance, which shall be accompanied by a copy
(original and photocopy) of the registration prepared
and issued by the Patent and Trademark Office showing
both the current status of and current title to the
registration. The notice of reliance shall be filed
during the testimony period of the party that files the
notice.
While opposer has alleged ownership of a registration
and has attached a copy thereof to its notice of opposition,
the registration is not properly of record. There are
several ways for a party to introduce a registration that it
owns into evidence in a Board proceeding. The most common
way is to attach to the notice of opposition two copies of
the registration prepared and issued by the USPTO showing
both current status and title or to submit such copies under
notice of reliance. Trademark Rule 2.122(d). Opposer has
not provided such copies. Other ways a party’s registration
Opposition No. 91111244
8
will be considered to be of record include by identification
and introduction during the testimony period by a qualified
witness who testifies concerning the status and title of the
registration; by admission in the applicant’s answer; or by
the applicant treating the registration as being of record
in its brief. TBMP § 704.03(b)(1)(A) (2d ed. 2003).
Inasmuch as opposer’s witness did not testify as to the
status and title of its pleaded registration, and because
applicant did not admit the existence of the registration in
its answer, in its admissions or in its brief, the
registration was not made of record by any of these means.
Hewlett-Packard Co. v. Olympus Corp., 931 F.2d 1551, 18
USPQ2d 1710, 1713 (Fed. Cir. 1991) (Federal Circuit affirmed
the Board’s dismissal of an opposition for failing to
present a prima facie case of likelihood of confusion).
Therefore, opposer will not be permitted to rely on
such registration as a basis to oppose the registration of
the application in this case.
Applicant also maintains that “opposer cannot rely upon
common law or trade name rights” and that the notice of
opposition “makes no mention whatsoever of common law
trademark rights.” Applicant’s Brief at 9. However, while
the notice of opposition did not use the term “common law”
rights, it did put applicant on notice that opposer was
relying on the use of its mark prior to applicant’s use.
Opposition No. 91111244
9
See Notice of Opposition at 2 (Opposer “has engaged, is now
engaged, and plans to continue to engage in the services of
advertising, sale, and marketing of men’s, women’s and
children’s clothing…” and opposer “has used and is now using
the trademark ‘PAC SUN®’ in doing business in the clothing
industry”); and Notice of Opposition at 3 (“Because of this
investment in the advertising, sale and marketing of
Opposer’s products bearing the trademark ‘PAC SUN®,’
customers, potential customers and others in or familiar
with the clothing industry have come to know and recognize
Opposer’s service mark and services and to associate them
with Opposer and the goods sold by Opposer”). Therefore, we
hold that opposer can rely on its pleading of common law
rights in the mark PAC SUN.
In a case involving common law rights, “the decision as
to priority is made in accordance with the preponderance of
the evidence.” Hydro-Dynamics Inc. v. George Putnam &
Company Inc., 811 F.2d 1470, 1 USPQ2d 1772, 1773 (Fed. Cir.
1987). Applicant’s mark was filed on July 14, 1997. Its
application is an intent-to-use application. Such an
application has its filing date as a constructive use date.
Zirco Corp. v. American Telephone and Telegraph Co., 21
USPQ2d 1542, 1544 (TTAB 1991) (“[T]here can be no doubt but
that the right to rely upon the constructive use date comes
into existence with the filing of the intent-to-use
Opposition No. 91111244
10
application and that an intent-to-use applicant can rely
upon this date in an opposition brought by a third party
asserting common law rights”).
The next question is whether opposer has demonstrated
that it has used its mark for its goods or services prior to
applicant’s July 14, 1997, priority date. Opposer’s witness
testified in 2001 that he has worked for opposer since 1991.
Harmon dep. at 7 (“Q. How long have you worked for Pacific
Sunwear? A. Ten years”). He has been president of opposer
for four years prior to his deposition. Harmon dep. at 58.
There is nonetheless little definitive evidence that shows
use of the mark PAC SUN on clothing items prior to
applicant’s constructive use date. We note that while
opposer has also testified that it operates 684 stores
(Harmon dep. at 52), the testimony regarding its use of its
mark on goods is less clear. Most of the exhibits appear to
refer to retail clothing store services. There is an
exhibit (# 10) that consists of garment labels but the
testimony regarding these labels consists of the following
statement: “These are PacSun labels that are sewn into
garments that are sold in our stores.” Harmon dep. at 37.
There is no testimony as to when these labels were used or
on what goods they were used. Some exhibits refer to a
different mark, PACIFIC SUNWEAR. Harmon Ex. 13 at 2-10; 14
at 2, 5, 7, and 9.
Opposition No. 91111244
11
However, we find that at the very least one exhibit
demonstrates that opposer was using the mark PAC SUN in
association with retail clothing store services. Harmon Ex.
9-1. Opposer’s witness testified that this exhibit was part
of a program that started in 1995. Harmon dep. at 35.
There is other evidence that supports opposer’s use of the
mark as a service mark for retail sales of clothing. See
Harmon Ex. 14 at 4 (PACSUN Stores, PACSUN gift certificates,
an 888-4PACSUN telephone number).4
The exhibits and testimony support a conclusion that
opposer began using its mark, at least in connection with
retail store services, prior to July 14, 1997. The evidence
regarding use of opposer’s marks on goods consists of its
president stating that the dates of use in its registration
were correct. However, the dates of use preceded the
president’s tenure with the company. We decline to assume
that the PAC SUN mark was in use on the goods identified in
the pleaded registration at the time of the witness’s
employment by opposer because the testimony was not very
clear and the documentary evidence provides little support
for this statement.
Likelihood of Confusion
The central question in this case is whether there is a
likelihood of confusion. In likelihood of confusion cases,
4 The goods in the exhibit were identified by different
Opposition No. 91111244
12
we look to the relevant factors set out in In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed.
Cir. 2003). See also In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); and Recot,
Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1896 (Fed.
Cir. 2000).
We start by considering whether the goods and services
of the parties are similar. We must consider the goods as
they are identified in the identification of goods in the
application. Paula Payne Products v. Johnson Publishing
Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973) (“Trademark
cases involving the issue of likelihood of confusion must be
decided on the basis of the respective descriptions of
goods”). The application in this case is for men’s, women’s
and children’s clothing, namely, shirts, sweatshirts, T-
shirts, jackets, coats, robes, sweaters, hats, caps, skirts,
dresses, sweatpants, trousers, slacks, shorts, sleepwear,
and neckwear. Regarding opposer’s mark, we will consider
that opposer’s retail clothing store services involve many
of applicant’s clothing items. We find that clothing items
are related to retail clothing store services for the
trademarks (VANS shoes, SURF DIVA T-shirts, ANGEL sunglasses).
Opposition No. 91111244
13
identical clothing items.5 In re United States Shoe Corp.,
229 USPQ 707, 708 (TTAB 1985) (“The goods must, for our
purposes, be considered to be identical and the services are
closely related to the goods. Applicant sells women's
clothing and renders women's retail clothing store service
under its mark. Registrant also sells clothing under its
mark”); In re Gerhard Horn Investments Ltd., 217 USPQ 1181,
1182 (TTAB 1983) (“[C]onfusion and mistake as to the origin
of ‘MARIPOSA’ clothing store services and fabric goods would
be equally likely.”).
The next important factor in a likelihood of confusion
analysis is the similarity or dissimilarity of the marks.
When we compare the marks, we must compare them in their
entireties rather than the individual features of the marks.
In re Shell Oil, 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed.
Cir. 1993). Here, opposer’s mark is PAC SUN while
applicant’s mark is PAC AIT. The only feature that the
marks have in common is the initial word PAC. The second
words in the marks are completely different except for the
fact that they contain three letters (SUN and AIT).
Applicant indicates that the word “ait” is defined as “a
5 For the sake of completeness, we add that, even if opposer had
proven that it was using its mark PAC SUN on clothing items,
including some of the same goods as applicant, this fact would
not change the outcome in this case. The other factors strongly
support the outcome in this case. See Bost Bakery, Inc. v.
Roland Industries, Inc., 216 USPQ 799 (TTAB 1982) (HERITAGE
HEARTH and OLD HEARTH, both for bread, not confusingly similar).
Opposition No. 91111244
14
small island, esp. in a river (Brit. Dial.)” and that it is
“also homonymous with the word ‘eight.’” Applicant’s Notice
of Reliance, Ex. 7; Applicant’s Answers and Objections at 2.
This is not a case in which the parties’ respective uses of
generic or highly descriptive terms create a situation where
the marks become very similar. Cf. In re National Data
Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985):
To illustrate, assume the following pairs of
hypothetical marks for identical financial services:
ACCOUNT and EXCHANGE; CASH ACCOUNT and CASH EXCHANGE
or MANAGEMENT ACCOUNT and MANAGEMENT EXCHANGE; CASH
MANAGEMENT ACCOUNT and CASH MANAGEMENT EXCHANGE; and,
finally, CASH MANAGEMENT ACCOUNT BANK and CASH
MANAGEMENT EXCHANGE BANK. That these pairs are of
progressively greater similarity is readily apparent,
with the result that likelihood of confusion of the
public becomes a closer question at each step of the
progression, until it becomes virtually undeniable even
though only a "generic" word, "BANK," has been added to
the final stage.
We find that there are significant differences in the
pronunciation and appearance of the marks PAC SUN and PAC
AIT. The word, PAC, which opposer acknowledges is an
abbreviation of the word PACIFIC, is hardly a unique or
arbitrary term in the Untied States. Harmon dep. at 13.
Regarding the meaning of the marks, opposer
acknowledges that its mark is a shortened version of its
name, PACIFIC SUNWEAR. Harmon Dep. at 13 (“Kids starting
calling the company PacSun instead of Pacific Sunwear”).
The term, as a shortened form of sunwear, is again not an
arbitrary or unique term when applied to clothing items.
Opposition No. 91111244
15
Applicant argues that the term “A-I-T is a play on words in
that it sounds like the number, and you had Pac 8 on the
West Coast and Big Ten and the Big West, and it’s really
just a take-off on that concept of various sports leagues.”
Applicant’s Brief at 15, citing, Kronholm disc. dep. at 14.6
We tend to agree, at least, in part with applicant that
prospective purchasers may pronounce the word “ait” as the
number “eight” similar to the former PAC 8 (now the PAC 10).
To the extent that purchasers would not pronounce the mark
as the number “eight,” they would likely just spell out the
letters as if they were an acronym, “A.I.T.” While a few
people may be familiar with the British Dialect definition
of “ait” as an island chiefly in a river, it is unlikely
that even this definition would lead the purchasers to view
applicant’s and opposer’s mark as similar in meaning as
opposer argues. Opposer’s Brief at 21 (“‘Sun’ in ‘PAC SUN’
accentuates the pacific island effect. Similarly, ‘Ait’ in
‘PAC AIT’ also accentuates the pacific island effect”). We
conclude that, regardless of the interpretation of the word
“ait,” the meanings of the marks PAC SUN and PAC AIT would
be different.
When we view the marks as a whole, we conclude that
their commercial impressions are substantially different.
PAC SUN and PAC AIT have significant differences in sound,
6 Applicant’s witness also cryptically asserted that “there are
Opposition No. 91111244
16
appearance, and meaning and their overall commercial
impressions are not similar. Furthermore, there is little
evidence to suggest that PAC, the abbreviation for
“pacific,” is itself associated with opposer in such a way
that it would dominate both marks and lead consumers to
associate applicant’s mark with opposer’s mark.7
Applicant’s addition of the word “AIT” is hardly a term
that would be glossed over by prospective purchasers or
simply substituted for “SUN.” It would likely cause
purchasers to pause and consider its meaning and
pronunciation. It would also diminish the significance of
the initial word “PAC.” See Jacobs v. International
Multifoods Corp., 668 F.2d 1234, 212 USPQ 641, 642 (CCPA
1982) quoting, National Distillers and Chemical Corp. v.
William Grant & Sons, Inc., 505 F.2d 719, 184 USPQ 34, 35
(CCPA 1974) (“[W]e here consider as marks a commonly known
term, BOSTON TEA PARTY, and an uncommon term, BOSTON SEA
PARTY. Although appellant argues that there exist
similarities in sight, sound, and meaning (which are self-
evident), and that appellee admits that its term is a play
on ‘Boston Tea Party,’ we remain convinced that ‘the
familiar is readily distinguishable from the unfamiliar’”) .
eight Pacific islands.” Kronholm disc. dep. at 14
7 We grant opposer’s request to take judicial notice of the
definitions of “Pacific.” University of Notre Dame du Lac v.
J.C. Gourmet Food Imports Co., 213 USPQ 594, 596 (TTAB 1982),
aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
Opposition No. 91111244
17
See also Colony Foods, Inc. v. Sagemark, Ltd., 735 F.2d
1336, 222 USPQ 185, 186 (Fed. Cir. 1984) (“Stated
otherwise, the fact that both marks [HUNGRY HOBO and HOBO
JOE’S] play on the hobo theme is not enough to make
confusion likely, in light of the differences in the marks
as a whole”) (quoting and affirming Board).
We now look at other factors that are important in a
likelihood of confusion determination. Opposer argues that
its “mark is famous as determined by its sales, advertising,
and length of use.” Brief at 30. Opposer’s witness
testified that it advertises on Warner Brothers television
(WB) as well as on MTV, ESPN, and ESPN2. Harmon dep. at 47.
In addition, its advertising budget was $10,000,000 in 2000
and $13,000,000 in 2001. Harmon dep. at 51. Opposer has
684 stores now (Harmon dep. at 52) and opposer’s sales have
increased from $112,000,000 in 1996 to $436,800,000 in 2000.
We also note that much of the increase in opposer’s sales
and advertising occurred after the filing of the application
in this case. In his 2001 deposition, opposer’s witness
indicated that he has been running the advertising “for the
last three years” and opposer “really didn’t advertise prior
to that.” Harmon dep. at 65.8
8 Interestingly, opposer has also introduced nine questionnaires
from several consumers. Harmon Ex. 18. In response to the
question, ”Of all the stores you shop for casual clothes, which
ones are your favorites,” none of the respondents used the mark
PAC SUN to refer to opposer’s stores. They all identified the
Opposition No. 91111244
18
The Federal Circuit “has acknowledged that fame of the
prior mark, another du Pont factor, ‘plays a dominant role
in cases featuring a famous or strong mark.’” Century 21,
23 USPQ2d at 1701, quoting, Kenner Parker Toys v. Rose Art
Industries Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed.
Cir. 1992). “Famous marks thus enjoy a wide latitude of
legal protection.” Recot, Inc. v. Becton, 214 F.3d 1322, 54
USPQ2d 1894, 1897 (Fed. Cir. 2000) (FIDO LAY for edible dog
treats confusingly similar to FRITO-LAY snack foods). When
we review the evidence that opposer has submitted regarding
the fame of its mark, we are convinced that opposer’s mark
is not weak and that it has obtained some public recognition
or renown, but there is little evidence that opposer’s
recognition extends to the term “Pac” alone. We also find
that the public recognition and renown is not so great that
the public would be likely to confuse these otherwise
significantly different marks.
Another factor that the parties dispute is the
sophistication of the purchasers of the respective goods and
services. Opposer argues that purchasers of clothing of the
store as Pacific Sunwear or Pacific Sun. In response to the
request to rank their favorite brand of clothing, no respondent
listed PAC SUN or even Pacific Sunwear as their favorite brand.
Inasmuch as the respondents “are customers that have shopped
within a Pacific Sunwear store in the last 90 days prior to the
event,” the total lack of identification of opposer’s PAC SUN
mark by its own customers is surprising.
Opposition No. 91111244
19
type sold by opposer9 and applicant are impulsive. Opposer
also argues that its purchasers are “young, relatively
unsophisticated consumer[s].” Brief at 28. Applicant
argues that the “purchasers for the goods are not impulsive
or unsophisticated.” Brief at 16. We find that the
evidence does not support opposer’s argument that the
purchasers would be impulsive or unsophisticated. Opposer
has indicated that the price of its goods range from $18 for
T-shirts to $130 for jackets. Harmon dep. at 26-27. In
addition, opposer’s own questionnaires of its purchasers
pertaining to trademark recognition do not provide any basis
to infer that these purchasers, who identified their ages as
ranging from 15-18, were less sophisticated than other
purchasers.
When we analyze this case and consider all the factors
on the issue of likelihood of confusion, we are convinced
that there is no likelihood of confusion in this case. The
marks have little in common other than the term PAC, which
opposer’s evidence does not indicate is a dominant term
associated with opposer. The overall commercial impressions
of the marks PAC SUN and PAC AIT are different. Kellogg Co.
v. Pack’em Enterprises Inc., 951 F.2d 330, 21 USPQ 1142,
1143-44 (Fed. Cir. 1991) (FROOTEE ICE and elephant design is
so different from FROOT LOOPS that, even if goods were
9 Patrons of opposer’s retail stores would apparently be similar
Opposition No. 91111244
20
closely related and opposer’s mark were famous, there was no
likelihood of confusion).
Decision: The opposition is dismissed.
to the purchasers of its goods.