Red Lion Mfg., Inc.

Trademark Trial and Appeal Board

Jun 29, 2004

No. 76329041 (T.T.A.B. Jun. 29, 2004)

Mailed: June 29, 2004
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
Trademark Trial and Appeal Board
____________
In Red Lion Manufacturing, Inc.
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Serial No. 76329041
NOTICE OF CORRECTION
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Martin P. Hoffman for Red Lion Manufacturing, Inc.
Jason Turner, Trademark Examining Attorney, Law Office 108
(David Shallant, Managing Attorney).
By the Board:
The final decision in this appeal mailed June 25, 2004,
incorrectly identified the panel that decided the appeal.
A corrected copy of the decision is attached.
The period for filing a request for reconsideration or
notice of appeal will commence from the date of the re-
issued decision and this Notice of Correction.
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UNITED STATES PATENT AND TRADEMARK OFFICE
____________
Trademark Trial and Appeal Board
____________
In Red Lion Manufacturing, Inc.
____________
Serial No. 76329041
_____________
Martin P. Hoffman for Red Lion Manufacturing, Inc.
Jason Turner, Trademark Examining Attorney, Law Office 108
(David Shallant, Managing Attorney).
____________
Before Hanak, Hohein and Walters, Administrative Trademark
Judges.
Opinion by Hanak, Administrative Trademark Judge:
Red Lion Manufacturing, Inc. (applicant) seeks to
register ZR in the form shown below for “men’s and women’s
golfwear, namely, jackets, pullovers, vests, slacks, pants,
shirts, shorts, hats, caps, visors, ear bands, gloves and
fleece-lined hand warmers, not related to, or for use with
snowmobiles.” The application was filed on August 20, 2001
with a claimed first use date of January 13, 1995.
THIS OPINION IS NOT CITABLE
AS PRECEDENT OF
THE T.T.A.B. 6-29-04
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Citing Section 2(d) of the Trademark Act, the
Examining Attorney has refused registration on the basis
that applicant’s mark, as applied to applicant’s goods, is
likely to cause confusion with the mark ZR, previously
registered in typed drawing form for “clothing; namely,
snowmobile suits and jackets.” Registration No. 1,803,563.
When the refusal to register was made final, applicant
appealed to this Board. Applicant and the Examining
Attorney filed briefs. Applicant did not request a
hearing.
In any likelihood of confusion analysis, two key,
although not exclusive, considerations are the similarities
of the marks and the similarities of the goods. Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24, 29 (CCPA 1976)(“The fundamental inquiry mandated
by Section 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods
and differences in the marks.”).
Considering first the marks, they are almost
identical. Obviously, when pronounced the two marks are
absolutely identical. Moreover, both marks lack any
connotation. Finally, in terms of visual appearance, we
recognize that applicant has depicted the letters ZR in a
stylized form. However, registrant owns a registration of
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the letters ZR in typed drawing form. This means that the
registration is “not limited to the mark depicted in any
special form,” hence we are mandated “to visualize what
other form the mark might appear in.” Phillips Petroleum
Co. v. C.J. Webb, Inc., 442 F.2d 1376, 170 USPQ 35, 36
(CCPA 1971). See also INB National Bank v. Metrohost Inc.,
22 USPQ2d 1585, 1588 (TTAB 1992).
Registrant would be entirely free to depict its mark
ZR such that the two letters are joined, just as they are
in applicant’s stylized ZR mark. If registrant were to
depict its mark in such a manner, then visually the two
marks would be extremely similar.
Thus, the first Dupont “factor weights heavily against
applicant” because applicant’s mark is nearly identical to
the registered mark if the registered mark were to be
depicted with the letters ZR intertwined. In re Martin’s
Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289,
1290 (Fed. Cir. 1984).
Turning to a consideration of applicant’s goods and
registrant’s goods, we note that because the marks are
nearly identical, their contemporaneous use can lead to the
assumption that there is a common source “even when [the]
goods or services are not competitive or intrinsically
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related.” In re Shell Oil Co., 922 F.2d 1204, 26 USPQ2d
1687, 1689 (Fed. Cir. 1993).
Applicant’s goods include golfwear jackets not for use
with snowmobiles. Registrant’s goods include snowmobile
jackets. In other words, both applicant’s goods and
registrant’s goods include jackets for use in connection
with specific sports, namely, golf and snowmobiling.
It is obvious that the same consumers could enjoy both
golf and snowmobiling and would have the need to purchase
both golf jackets and snowmobiling jackets. If said
consumers were to see the virtually identical mark ZR on
golf jackets and snowmobiling jackets, we find that said
consumers would assume that both types of jackets emanated
from a common source.
Given the fact that the marks are essentially
identical, and the additional fact that the goods are
clearly related, we find that there exists a likelihood of
confusion.
Decision: The refusal to register is affirmed.