Single Figure Golfer Limited

Trademark Trial and Appeal Board

Jun 4, 2009

No. 77017628 (T.T.A.B. Jun. 4, 2009)

Mailed:
June 4, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Single Figure Golfer Limited
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Serial No. 77017628
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Thomas F. Dunn of Morse, Barnes-Brown & Pendleton, P.C., for
Single Figure Golfer Limited.

Aisha Y. Salem, Trademark Examining Attorney, Law Office 113
(Odette Bonnet), Managing Attorney).
_______

Before Walsh, Cataldo, and Ritchie, Administrative Trademark
Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Single Figure Golfer Limited1 (“applicant”) filed an
application to register the mark shown below for “golfwear and
casualwear, namely, golf shirts, golf sweaters, golf
sweatshirts, golf polo shirts, golf vests and sweater vests,
golf turtlenecks, club shirts, golf jackets, golf trousers, golf
cleats, golf foul weather gear, golf windshirts, windvests and
wind resistant jackets, golf rainsuits, golf waterproof jackets,

1 The application was originally filed by Robert John Millar, an
individual, who recorded an assignment to applicant on January 28,
2009 (Reel/Frame 3925/0859; corrected on February 19, 2009 via
3938/0453).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77017628
2
golf fleece pullovers, golf caps and hats, golf visors, golf
shoes, golf spikes and belts,” in International Class 252:

The Trademark Examining Attorney refused registration of
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d), on the ground that applicant’s mark so
resembles the registered mark SDG, in typed drawing, for
“sportswear, namely, shirts, pants, shorts, gloves and sweat
shirts,” in International Class 25,3 that when used on or in
connection with applicant’s identified goods, it is likely to
cause confusion or mistake or to deceive. Upon final refusal of
registration, applicant filed a timely appeal. Both applicant
and the examining attorney filed briefs. For the reasons
discussed herein, the Board affirms the refusal to register.
We base our determination under Section 2(d) on an analysis
of all of the probative evidence of record bearing on a

2 Serial No. 77017628, filed March 3, 2008, pursuant to Section 1(b) of
the Trademark Act, 15 U.S.C. §1051(b), alleging a bona fide intent to
use in commerce.
3 Registration No. 2055483, issued April 22, 1997, claiming first use
and first use in commerce on March 30, 1994; Sections 8 and 15
affidavits accepted and acknowledged. Renewed.
Serial No. 77017628
3
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 goods or 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”). We discuss each of the du Pont factors as to which
applicant or the examining attorney submitted argument or
evidence.
The Marks
We consider and compare the appearance, sound, connotation
and commercial impression of the marks in their entireties. In
re E. I. du Pont De Nemours & Co., 177 USPQ at 567. The cited
registration consists of the letters “SDG” in typed drawing.
Applicant’s design mark consists of the same three letters,
presented in the same sequence, followed by the term “<10,” in
smaller font. Because it is presented first and in larger font,
we consider the letter sequence “SDG” to be the dominant portion
of applicant’s mark. In re National Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985) (“[T]here is nothing improper
Serial No. 77017628
4
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 consideration of the marks in their
entireties. Indeed, this type of analysis appears to be
unavoidable.”) Frequently, as is likely here, the first word
(or in this case letter sequence) of a mark is deemed the
dominant portion. See In re Chatam Int’l Inc., 380 F.3d 1340,
71 USPQ2d 1944 (Fed. Cir. 2004) (“GASPAR’S ALE” and “JOSE GASPAR
GOLD”); Lilly Pulitzer, Inc. v. Lilly Ann Corp., 376 F.2d 324,
153 USPQ 406 (CCPA 1967)(“THE LILLY” and “LILLI ANN”); In re
U.S. Shoe Corp., 229 USPQ 707(TTAB 1985)(“CAREER IMAGE” AND
“CREST CAREER IMAGES”); In re Riddle, 225 USPQ 630 (TTAB
1985)(“ACCUTUNE” and “RICHARD PETTY’S ACCU TUNE”).
With respect to the design portion of applicant’s mark, it
is well-established that where a mark consists of words as well
as a design, the words are generally dominant because the words
will be used to call for or refer to the goods. CBS Inc. v.
Morrow, 708 F.2d 1579, 1581-82 (Fed. Cir. 1983); In re Dakin’s
Miniatures Inc., 59 UPSQ2d 1593, 1596 (TTAB 2001); In re
Appetito Provisions Co., Inc., 3 USPQ2d 1553, 1554 (TTAB 1987).
Since the letter sequence “SDG” is the dominant portion of
applicant’s mark, and the entirety of the cited registration, we
find the marks to be visually similar, although not identical
due to the added “<10” in applicant’s mark.
Serial No. 77017628
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Applicant argues that the marks are quite different
phonetically since its mark has the added “<10.” However, it is
well-established that there is no “correct” pronunciation of a
trademark that is not an ordinary word. Centraz Industries Inc.
v. Spartan Chemical Co. Inc., 77 USPQ2d 1698, 1701 (TTAB 2006).
It is not clear to us whether consumers would attempt to
pronounce the “<10” in applicant’s mark, or whether they would
instead perceive it as a design element, and thereby refer to
applicant’s mark only as “SDG.” In either case, we find that
the sound of the marks is, if not identical, at least similar.
Applicant also argues that the connotation and commercial
impression of its mark are completely different from that of the
cited registration. In particular, applicant argues that the
letter sequence “SDG” represents completely different phrases
for applicant and for registrant. In support of this argument,
applicant submitted into the record the specimen of use for the
cited registration, as well as webpages from registrant’s
website. Both show the letter sequence “SDG” followed by the
words “Speed Defies Gravity.” In contrast, applicant avers that
its “SDG” letter sequence signifies “Single Digit Golfer,” which
is why applicant’s “SDG” is followed in the applied-for-mark by
the term “<10.”
In support of this argument that the marks have different
commercial impressions, applicant cites the case B.V.D.
Serial No. 77017628
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Licensing Corp. v. Body Action Design, Inc., 846 F.2d 727, 6
USPQ2d 1719 (Fed. Cir. 1988) (finding B.V.D. insufficiently
similar to B.A.D., and affirming dismissal of opposition).
Applicant’s reliance on the B.V.D. case is misplaced however.
First, unlike in that case, the marks at issue here have no
periods or dots. Accordingly, it is not clear that they are
acronyms for anything. Rather, consumers may simply take the
marks at face value for the letter sequences that they are.
Second, the letter sequences in the marks at issue here are
identical, unlike in the B.V.D. case, where not only were the
letters different, but also both abbreviations were listed in
the dictionary with their (different) meanings. There is no
dictionary entry for “SDG,” nor has applicant submitted any
evidence that it is known by the relevant public as an
abbreviation for either “Speed Defies Gravity” or “Single Digit
Golfer.” Finally, it is imperative that we consider and compare
the marks as registered (or in applicant’s case, as applied
for), and not as used. Simply put, the registered mark is for
the letter sequence “SDG” by itself. Accordingly, there is
nothing in the cited registration that would restrict the
registrant from using its SDG mark, by itself, for the goods
identified therein.
In sum, the marks are similar in appearance, sound, meaning
and commercial impression. In view of the foregoing, we find
Serial No. 77017628
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that the first du Pont factor weighs in favor of finding a
likelihood of confusion.
The Goods, Classes of Consumers and Channels of Trade

In determining the similarity or dissimilarity of the
goods, we note that goods or services need not be identical or
even competitive in order to support a finding of likelihood of
confusion. Rather, it is enough that the goods or services are
related in some manner or that some circumstances surrounding
their marketing are such that they would be likely to be seen by
the same persons under circumstances which could give rise,
because of the marks used or intended to be used therewith, to a
mistaken belief that they originate from or are in some way
associated with the same producer or that there is an
association between the producers of each parties’ goods or
services. In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991).
We begin by observing that the identification of goods in
the cited registration includes “shirts,” “pants,” and
“sweatshirts,” as specific types of “sportswear.” These goods
are presumed to include applicant’s more narrowly identified
items of “golfwear and casual wear,” namely “golf shirts,” “club
shirts,” “golf trousers” and “golf sweatshirts.” Thus, as
identified, certain of applicant’s items of golf and club
clothing are included among the more broadly identified clothing
items of the same type in the cited registration.
Serial No. 77017628
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Further, in order to demonstrate the similarity of the
goods identified in the application to those in the cited
registration, the examining attorney submitted several use-
based, third-party registrations that identify goods from both
the application and the cited registration. Copies of use-
based, third-party registrations may serve to suggest that the
goods are of a type which may emanate from a single source. See
In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB
1993). For example, Registration No. 2463079 includes both
“sportswear and athletic wear, namely shirts,” as identified by
the cited registration, and “golfwear, namely, shirts,” as
identified by applicant; Registration No. 2582572 also includes
both “sportswear and athletic wear, namely shirts,” as
identified by the cited registration, and “golfwear, namely,
shirts,” as identified by applicant; and Registration No.
2552675 identifies “retail store featuring a variety of goods
relating to golfwear and sportswear.” These registrations show
the relatedness, if not overlap, between the goods identified
respectively in the application and the cited registration.
Applicant argues that its goods target different classes of
consumers than the registrant, referring to “golfers versus
cyclists.” (Appl’s brief at unnumbered 7 of 32). In making
this argument, applicant refers again to the specimen of use
from registrant and the printouts from registrant’s website.
Serial No. 77017628
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However, there is nothing in the cited registration that
restricts registrant to targeting its “sportswear” to cyclists
or to avoid targeting golfers. Meanwhile, applicant’s own
identification includes certain clothing items not restricted to
golfing such as “wind resistant jackets.” In addition, as we
stated above, we must presume that the broadly identified goods
in the registration encompass the more narrowly identified goods
in the application.
Likewise, in the absence of specific limitations in the
registration, we must presume that registrant’s goods will
travel in all normal and usual channels of trade and methods of
distribution. Squirtco v. Tomy Corporation, 697 F.2d 1038, 216
USPQ 937, 939 (Fed. Cir. 1983). See In re Linkvest S.A., 24
USPQ2d 1716, 1716 (TTAB 1992) (because there are no limitations
as to channels of trade or classes of purchasers in either the
application or the cited registration, it is presumed that the
services in the registration and the application move in all
channels of trade normal for those services, and that the
services are available to all classes of purchasers for the
listed services). Since there are no limitations on the
channels of trade in applicant’s identification of goods either,
we must make the same presumption with regard to applicant’s
goods. In other words, there is nothing that prevents the
registrant’s various clothing items from being sold in the same
Serial No. 77017628
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channels of trade and to the same classes of consumers that
purchase applicant’s various clothing items (and vice versa).
Accordingly, we find that these du Pont factors weigh in favor
of finding a likelihood of consumer confusion.
Balancing the Factors
In view of our findings that the marks are similar, the
goods are similar, and the goods move in some of the same
channels of trade to some of the same classes of consumers, we
find that applicant’s mark is likely to cause confusion with the
mark in the cited registration.
Decision: The refusal to register is affirmed.