91242509 (T.T.A.B. Feb. 9, 2021)

Sisco Textiles N.V.v.Technical Knockout, Inc.

Trademark Trial and Appeal BoardFeb 9, 2021

91242509 (T.T.A.B. Feb. 9, 2021)

This Opinion is Not a Precedent of the TTAB Mailed: February 9, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Sisco Textiles N.V. v. Technical Knockout, Inc. _____ Opposition No. 91242509 _____ Rochelle D. Alpert, Seth A. Rappaport, and Sharon R. Smith of Morgan, Lewis & Bockius LLP for Sisco Textiles N.V. Dale Paul DiMaggio and Kristina M. DiMaggio of Malin Haley Dimaggio & Bowen, P.A. for Technical Knockout, Inc. _____ Before Zervas, Lynch, and Hudis, Administrative Trademark Judges. Opinion by Lynch, Administrative Trademark Judge: Opposition No. 91242509 - 2 - Technical Knockout, Inc. (“Applicant”) seeks registration on the Principal Register of the design mark .1 The application describes the mark as “consist[ing] of an artistic and stylized ‘T’,” and states that color is not claimed as a feature of the mark. The application includes the following goods that are relevant to this proceeding: Protective boxing helmets; sunglasses; scales, scales with body mass analyzers; bathroom scales; body fat scales for household use; digital bathroom scales; weighing scales; weighing equipment, namely, scales and balances; headphones, earbuds, wireless headsets for use with mobile telephones, armbands specifically adapted for personal electronic devices, namely, mobile telephones and MP3 players; electronic publications, namely, exercise manuals and product manuals concerning health, fitness and exercise, all recorded on computer media; mouth guards for athletic use; head guards for sports in International Class 9; Luggage; all[-]purpose sports bags, backpacks and waistpacks in International Class 18; and Athletic and exercise sportswear, namely, men's, women's, and children’s swimwear, jeans, leather jackets, and collared sports shirts; Active wear for men and women, namely, boxer shorts, bicycle shorts, gym shorts, pants, pullovers, short sleeve shirts, sweatshirts, sweat shorts, sweat pants, sweat suits, t-shirts, tank tops, warm-up suits; Athletic footwear and headwear in International Class 25. 1 Application Serial No. 87516423 was filed on July 5, 2017 based on Applicant’s alleged intent to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). Opposition No. 91242509 - 3 - By its Notice of Opposition, Sisco Textiles N.V. (“Opposer”) opposes registration of the mark as to the goods set forth above2 based on alleged likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), with Opposer’s common law and registered marks. Opposer relies on the following, with status and title copies of the registrations included in the record:3 Registration Number & Dates Mark & Description Selected Goods/Services Reg. No. 4085739 Reg. Date 1/17/2012 App. Filing Date 2/19/2010 Priority Date 8/20/2009 (also common law rights) Description: “The mark consists of a stylized depiction of a wave.” Color is not claimed as a feature of the mark. [S]unglasses; spectacles, spectacle frames and accessories, namely, lenses for sunglasses, spectacle cords and cases; diving suits; … protective helmets; gloves for protection against accidents; diving gloves…. in International Class 9; Leather and imitation leather and goods made thereof, namely, luggage, suitcases, travel bags, shoulder bags, handbags, purses, wallets; bags, namely, backpacks, rucksacks, duffle bags, fanny packs, athletic bags, shoulder bags, handbags, book bags, shopping bags of 2 The application also includes goods and services in International Classes 5, 16, 21, 27, 28, 32, 41 and 44 that are not subject to this opposition. 1 TTABVUE 1-2. Citations refer to TTABVUE, the Board’s online docketing system. See Turdin v. Trilobite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). The number preceding “TTABVUE” corresponds to the docket entry number; the number(s) following “TTABVUE” refer to the page number(s) of that particular docket entry. 3 Registration Number 2204582, one of Opposer’s pleaded registrations in the Notice of Opposition (1 TTABVUE 9 (¶7) & 15-18 (Exhibit A)), for the mark , which registered on November 17, 1998, is no longer in force based on the failure to file the required Section 8 affidavit of continued use, and was administratively cancelled in the USPTO database on January 25, 2021. A cancelled or expired registration has no probative value other than to show that it once issued and it is not entitled to any of the statutory presumptions of Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b).” See Action Temp. Servs. Inc. v. Labor Force Inc., 870 F.2d 1563, 10 USPQ2d 1307, 1309 (Fed. Cir. 1989) (“a cancelled registration does not provide constructive notice of anything.”); see also In Re Ginc UK Ltd., 90 USPQ2d 1472, 1480 (TTAB 2007); In re Hunter Publ’g Co., 204 USPQ 957, 963 (TTAB 1979). We therefore give the cancelled registration no consideration. Opposition No. 91242509 - 4 - leather, imitation leather and textile; suitcases; travel bags; sports bags; beach bags; fanny packs; rucksacks made of leather pocket wallets and purses; trunks in International Class 18; Clothing, namely, shirts, t-shirts, pants, jackets, skirts, shorts, board shorts, swimwear, swimming trunks, swimsuits, sweatshirts, sweaters, socks, scarves; belts; footwear; snow boots; sports shoes; leisure shoes; booties for water sports; oriental slippers; slippers; sandals; headgear, namely, hoods, caps, cap peaks and hats; sports and leisure wear, namely, wetsuits, dry suits, gloves, wetsuit boots, and skiwear, namely, coats, jackets, pants, gloves and boots; clothing for surfing, windsurfing and water skiing, namely, wetsuits, dry suits, wetsuit boots and gloves; rash guards in International Class 25; Surfboards and accessories therefor, namely, fins, surfboard leashes in International Class 28; Retail store services and computerized on-line ordering services featuring clothing, such as sports and leisure clothing, and equipment for use in water sports, such as surfing; marketing and advertising…. in International Class 35. Reg. No. 4348476 Reg. Date 6/11/2013 App. Filing Date 8/9/2011 Priority Date 8/9/2011 (also common law rights) Description: “The mark consists of a design of a man on a surfboard with both arms raised up within two Diving suits; protective clothing for aquatic pursuits, namely, diving suits; diving gloves; emergency life-saving and teaching apparatus, namely, lifejackets in International Class 9; Paper and goods made from paper, namely, stickers; adhesives for stationery or household purposes; books in the field of surfing, watersports and skiing; printed matter, namely, advertising materials in International Class 16; Pocket wallets in International Class 18; Opposition No. 91242509 - 5 - stylized waves.” Color is not claimed as a feature of the mark. Clothing, namely, shirts, t-shirts, shorts, board shorts, swimwear, swimming trunks, swimsuits, sweatshirts, sweaters, socks, scarves; footwear; sports shoes; booties for water sports; oriental slippers; slippers; sandals; headgear, namely, caps, hats; skiwear, namely, coats, jackets, pants, gloves; wetsuits, dry suits, wetsuit boots and gloves for surfing, windsurfing and water skiing, as well as for other water sports; rash guards in International Class 25; Retail store services and computerized on-line ordering services featuring clothing, such as sports and leisure clothing, and equipment for use in water sports, such as surfing in International Class 35. N/A (common law use) Apparel, swimwear, wetsuits; athletic gear, footwear and/or retail store services, and online retail store services featuring such goods and services; surfing, athletic and other sporting and entertainment events. In its Answer, Applicant denied Opposer’s salient allegations, except admitted that Opposer owns its pleaded registrations.4 Applicant also raised three purported affirmative defenses, but they constitute mere amplifications of the denial of likely confusion arising under certain factors from In re E.I. DuPont de Nemours & Co., 476 4 4 TTABVUE. Opposition No. 91242509 - 6 - F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be considered, hereinafter referred to as “DuPont factors”).5 Thus, Applicant’s assertions are not true affirmative defenses, and we do not address them as such. The opposition is fully briefed. For the reasons set forth below, we sustain the opposition. I. Evidentiary Record and Related Matters The record includes the pleadings and, pursuant to Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), the file of the opposed application. Both parties also submitted declaration testimony and notices of reliance. Opposer and Applicant both submitted evidentiary objections.6 Opposer objects to various portions of Applicant’s trial declarations by Garry W. Kurtz, Applicant’s President, CEO and founder, and Andrew Henderson, Applicant’s Vice President, on grounds including hearsay, irrelevance, lack of competence and improper opinions from a non-expert witness, and lack of foundation due to no personal knowledge of certain matters. Opposer also objects to Applicant’s submission of USPTO records on various grounds including irrelevance, lack of foundation, third-party registrations without accompanying recent use evidence or with only allegedly “de minimis” use evidence, a TESS listing of the results of certain design code searches that lacks printouts of the underlying registrations or applications listed, and TESS printouts of third-party registrations that lack 5 Id. 6 25 TTABVUE 36-50; 26 TTABVUE 36-58; 27 TTABVUE 9-11. Opposition No. 91242509 - 7 - accompanying printouts from the assignment records. Opposer objects to Applicant’s use-related evidence on grounds of irrelevance.7 Finally, Opposer objects to Applicant’s Notice of Reliance Exhibit 21 (photographs of Applicant’s goods) and Exhibit 22 (screenshots from Opposer’s website), on the ground that they are “not the type of evidence that one can introduce through a notice of reliance.”8 Applicant objects to various portions of Opposer’s trial declaration by Benoit Nasr, International Brand Director, O’NEILL Brand S.a.r.l., an affiliate of Opposer ,9 on grounds of lack of foundation and improper legal opinion. As to both Opposer’s and Applicant’s objections to the testimony in the declarations, “the Board generally does not strike testimony taken in accordance with the applicable rules on the basis of substantive objections; rather, the Board considers such objections when evaluating the probative value of the testimony at final hearing.” Bd. of Regents v. S. Ill. Miners, LLC, 110 USPQ2d 1182, 1194 n.19 (TTAB 2014) (citations omitted). We therefore overrule the objections to the testimony, but will weigh its relevance, foundation, and strength or weakness, including any inherent limitations, such as improper opinion testimony or the reliance on hearsay. See United States Playing Card Co. v. Harbro, LLC, 81 USPQ2d 1537, 1540 (TTAB 2006). Thus, for example, to the extent the lay witness declarations offer opinions on the ultimate legal questions in the case, we give such testimony no probative value. 7 Many of the objections go to the weight to which evidence is entitled, rather than its admissibility. 8 26 TTABVUE 49. 9 21 TTABVUE. Opposition No. 91242509 - 8 - Turning to the objections to the documentary evidence, Applicant responded to the objections to Exhibits 21 and 22 by noting that the identical documents were authenticated and submitted through the Kurtz declaration.10 Thus, because the documents were introduced through testimony, we need not address their admissibility by notice of reliance, and we consider these objections moot. With the remaining objections to documents, as discussed above regarding testimony, the Board similarly is capable of assessing the proper evidentiary weight to be accorded the documentary evidence, taking into account the concerns raised by the objections, such as the degree of relevance and whether any limitations of the evidence prevent the evidence from supporting the proposition for which it is offered. We therefore have considered all of the evidence submitted for the record, but bear in mind the objections, and accord whatever probative value the evidence merits. See Pierce-Arrow Soc’y v. Spintek Filtration, Inc., 2019 USPQ2d 471774 at *8-*9 (TTAB 2019); Luxco, Inc. v. Consejo Regulador del Tequila, A.C., 121 USPQ2d 1477, 1479 (TTAB 2017); Poly-America, L.P. v. Ill. Tool Works Inc., 124 USPQ2d 1508, 1510 (TTAB 2017). For example, a TESS listing by itself may be considered for what it shows on its face, but does not establish or suffice to introduce the underlying registrations reflected in the list. See, e.g., In re Morinaga Nyugyo K.K., 120 USPQ2d 1738, 1745 (TTAB 2016), (quoting J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:89). 10 Exhibit 21 (photographs of Applicant’s goods) corresponds to Exhibit E of the Kurtz declaration (24 TTABVUE 263-75) and Exhibit 22 (website screenshots) corresponds to Exhibit C of the Kurtz declaration. We note that Exhibit 22 contains a URL and date. Opposition No. 91242509 - 9 - We note that Opposer failed to cite to TTABVUE docket entries in its briefs. Opposer instead generally cited to evidence by document title and page or paragraph number. We therefore reiterate the guidance in TBMP § 801.01 (2020), “[t]o allow readers [of briefs] to easily locate materials in the record, the parties should cite to the evidence in the trial record by referencing the TTABVUE entry and page number,” and in Turdin v. Trilobite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014): Because the Board primarily uses TTABVUE in reviewing evidence, the Board prefers that citations to material or testimony in the record that has not been designated confidential include the TTABVUE docket entry number and the TTABVUE page number. For material or testimony that has been designated confidential and which does not appear on TTABVUE, the TTABVUE docket entry number where such material or testimony is located should be included in any citation. II. Entitlement to a Statutory Cause of Action11 Entitlement to a statutory cause of action is a threshold issue in every inter partes case. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837 at *3 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125-26, 109 USPQ2d 2061, 2067 n.4 (2014)). A party in the position of plaintiff may oppose registration of a mark when such opposition is within the zone of interests protected by the statute, 15 U.S.C. § 1063, and the plaintiff has a reasonable belief in damage that is proximately caused by 11 Board decisions have previously analyzed the requirements of Sections 13 and 14 of the Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” Despite the change in nomenclature, our prior decisions and those of the Federal Circuit interpreting Sections 13 and 14 remain equally applicable. See Spanishtown Enters., Inc. v. Transcend Resources, Inc., 2020 USPQ2d 11388, at *2 (TTAB 2020). Opposition No. 91242509 - 10 - registration of the mark. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277, at * 6-7 (Fed. Cir. 2020). Opposer’s pleaded registrations, for which it has proven status and title, establish its statutory entitlement to a Section 2(d)-based opposition that is not wholly without merit. See Lipton Indus. Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982); see also Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1727-28 (Fed. Cir. 2012); Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000). III. Priority Because Opposer has made its registrations of record, and Applicant has not counterclaimed to cancel them, priority is not an issue as to the marks and goods and services covered by the registrations. See Top Tobacco LP v. N. Atl. Op. Co., 101 USPQ2d 1163, 1169 (TTAB 2011) (citing King Candy, Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 82 USPQ 108 (CCPA 1974)); see also Massey Junior Coll., Inc. v. Fashion Inst. of Tech., 492 F.2d 1399, 181 USPQ 272, 275 n.6 (CCPA 1974) (“prior use need not be shown by a plaintiff relying on a registered mark unless the defendant counterclaims for cancellation.”); Itel Corp. v. Ainslie, 8 USPQ2d 1168, 1169 (TTAB 1988) (“because of the existence of opposer’s valid and subsisting registration, it need not prove prior use as to the services recited therein”). As discussed below, we base our likelihood of confusion determination on one of Opposer’s pleaded registrations, and therefore need not address Opposer’s alleged priority based on common law rights. Opposition No. 91242509 - 11 - IV. Likelihood of Confusion The determination under Section 2(d) involves an analysis of all of the probative evidence of record bearing on a likelihood of confusion. In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be considered, hereinafter referred to as “DuPont factors”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). A likelihood of confusion analysis often focuses on the similarities between the marks and the similarities between the goods. 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.”). Opposer bears the burden of proving its claim of likelihood of confusion by a preponderance of the evidence. Cunningham, 55 USPQ2d at 1848. For purposes of the likelihood of confusion analysis, we focus on Opposer’s Registration Number 4085739 (hereinafter “the Wave Registration”) for the mark, , that covers, inter alia, sunglasses, backpacks, and various clothing items, which directly overlap with at least some of Applicant’s goods in each opposed International Class in the application. If the Wave Registration, which includes overlapping goods, does not result in our finding likely confusion, Opposer’s other registration and common law marks would not either. By the same token, if the Opposition No. 91242509 - 12 - Wave Registration results in our finding likely confusion, we need not rely on the other registration or common law use to sustain the opposition. We therefore consider the mark and goods of Registration Number 4085739 most relevant to our likelihood of confusion analysis. See In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010). A. The Goods, Trade Channels and Classes of Consumers Our comparison of the goods must be based on the identifications in the application and Opposer’s registrations. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v. Hous. Comput. Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). A finding of likely confusion must be made with respect to at least one item in each opposed class of the application to establish likely confusion as to that class of goods. Tuxedo Monopoly, Inc. v. General Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981). As identified, at least some goods in each opposed class of the application are in-part identical to goods in the Wave Registration, for example, “sunglasses” in International Class 9,12 “backpacks” and “luggage” in International Class 18, and “swimwear,” “sweatshirts,” and “t-shirts” in International Class 25. Applicant relies on extrinsic evidence to suggest that it focuses on “fitness, exercise, boxing and martial arts goods, athletic apparel and sportswear and fitness services,” while Opposer allegedly focuses on “the surf industry, beach lifestyle 12 The application’s “protective boxing helmets” also are encompassed by the Wave Registration’s “protective helmets” in International Class 9, making them legally identical. Opposition No. 91242509 - 13 - products, related swim wear, wetsuits and clothing, surfboarding and snowboarding goods and services.”13 However, we must consider the identifications of goods and services in the application and registration, and in the absence of restrictions in the identifications themselves, see Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 56 USPQ2d 1351, 1357 (Fed. Cir. 2000), we cannot consider these alleged actual marketplace differences. Stone Lion Capital Partners, 110 USPQ2d at 1162 (“It was proper, however, for the Board to focus on the application and registrations rather than on real world conditions, because ‘the question of registrability of an Applicant’s mark must be decided on the basis of the identification of goods set forth in the application.’” (quoting Octocom Sys., 16 USPQ2d at 1787)); see also In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018) (“Indeed, the owner of an unrestricted registration is entitled to change its current trade channels at any time”). Because the goods in the Wave Registration are identical in part to Applicant’s, we presume that they travel through the same channels of trade to the same classes of purchasers, considerations under the third DuPont factor. See American Lebanese Syrian Assoc. Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011) (where the services were legally identical, “the marketing channels of trade and targeted classes of consumers and donors are the same”); see also Viterra, 101 USPQ2d at 1908 (finding Board entitled to rely on this legal presumption in determining likelihood of confusion). 13 26 TTABVUE 21 (Applicant’s Brief). Opposition No. 91242509 - 14 - These factors weigh strongly in favor of likely confusion. B. The Strength of Opposer’s Mark Before we turn to the similarity of the marks, we consider the strength of Opposer’s mark, as that will affect the scope of protection to which it is entitled. In determining the strength of a mark, we consider its conceptual strength, based on the nature of the mark itself, and its commercial strength, based on marketplace recognition of the mark. See In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010). The commercial strength of the mark also is affected by the number and nature of third-party use of similar marks for similar goods. Opposer argues that its wave design mark is inherently distinctive, and commercially strong to the point of being famous. Applicant disagrees and also counters that Opposer’s mark should be considered conceptually weak, as well as commercially weak under the sixth DuPont factor based on third-party use of similar marks for similar goods. Turning first to conceptual strength, while we agree with Opposer that its mark is inherently distinctive, we also agree with Applicant that as a wave design, we find Opposer’s mark is somewhat suggestive of beach and surf apparel and gear. The third-party registrations of wave designs, discussed below, demonstrate that in the apparel and eyewear industries, wave designs have “a normally understood and well- recognized … suggestive meaning,” presumably because the waves bring to mind the setting to wear a type of clothing and eyewear such as are identified in Opposer’s identified goods in Classes 9 and 25. See Jack Wolfskin Ausrustung Fur Draussen Opposition No. 91242509 - 15 - GmbH & Co. KGaA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015). Turning next to commercial strength, under the fifth DuPont factor, as argued by Opposer, such commercial strength rests on the extent to which “a significant portion of the relevant consuming public . . . recognizes the mark as a source indicator.” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (citing Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005)). This involves assessing the mark “‘along a spectrum from very strong to very weak.’” Id. (internal citations omitted). At one end of the spectrum, a commercially stronger mark receives a wider latitude of legal protection in the likelihood of confusion analysis. See Palm Bay Imps., 73 USPQ2d at 1694. By contrast, “the weaker an opposer’s mark, the closer an applicant’s mark can come without causing a likelihood of confusion and thereby invading what amounts to its comparatively narrower range of protection.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015). Commercial strength under the fifth DuPont factor may be measured indirectly by the volume of sales and advertising expenditures in connection with the goods sold under the mark, and other factors such as length of time of use of the mark; widespread critical assessments; notice by independent sources of the goods identified by the marks; and the general reputation of the goods. Weider Publ’ns, LLC v. D & D Beauty Care Co., 109 USPQ2d 1347, 1354 (TTAB 2014); see also Bose Corp. v. QSC Opposition No. 91242509 - 16 - Audio Prods. Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1308 (Fed. Cir. 2002) (recognizing indirect evidence as appropriate proof of strength). Opposer points to a variety of evidence of commercial strength. It submitted some articles about its business and its founder, Jack O’Neill, but the media attention generally focuses on the origins of the business and the biography of Mr. O’Neill, particularly around the time of his death in 2017 at age 94.14 The articles do not shed much light on any strength of Opposer’s so-called “Wave Design Marks.” Opposer’s evidence also includes use of its Wave Design Marks on its website and those of “prominent third party retailers,” use on social media, and its sponsorship under its mark of athletic events such as surf competitions.15 Opposer provided testimony that in 2019, its licensees spent at least $6,000,000 in the U.S. and in 2018, $5,000,000 “on advertising and promotion of Opposer’s brands, including its Wave Design Marks.”16 However, the testimony does not make clear what portion of the expenditure applies to the marks at issue in this proceeding. Opposer additionally offered testimony that its “licensees have received in the United States alone for the last five years, in excess of $800,000,000 in sales revenue related to goods bearing Opposer’s Wave Design Marks.”17 We find this evidence, which is specific to the Wave Design Marks, more compelling, but its probative value is diminished somewhat by the lack of context such as Opposer’s relative market 14 E.g., 19 TTABVUE 400-11, 435-49, 454-60, 501-04. 15 21 TTABVUE 3, 6, 8 (Nasr Declaration). 16 21 TTABVUE 6 (Nasr Declaration). 17 21 TTABVUE 6 (Nasr Declaration). Opposition No. 91242509 - 17 - share, sales position in relation to competitors, Bose Corp., 63 USPQ2d at 1309 (“[S]ome context in which to place raw statistics is reasonable”); cf. Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1480 (TTAB 2016) (probative value of sales revenue figures quantified as doses sold is diminished by the fact that the amount is just a raw number without context as to applicant’s market share or whether this amount is significant in the industry), or other proof of regular, significant consumer exposure to the Wave Design Marks on a nationwide scale. See Omaha Steaks Int'l v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1690-91 (Fed. Cir. 2018) (extensive evidence regarding social media following, millions of customers targeted through direct mail advertising, nationwide retail locations, as well as national print, radio and TV ads, unsolicited movie and TV publicity). Applicant criticizes Opposer’s evidence as failing to show that the wave designs registered and used by Opposer “are famous apart from the O’NEILL house mark,” contending that the record “actually shows the main house mark O’NEILL used consistently together with the wave designs.”18 However, Mr. Nasr’s testimony indicates that in some instances, “[o]n goods, Opposer’s Wave Design Marks appear alone,” and his declaration includes some examples.19 In other examples, the design appears along with the O’NEILL wording.20 18 26 TTABVUE 27 (Applicant’s Brief). 19 21 TTABVUE 5 (Nasr Declaration). 20 Id. at 5-6. Opposition No. 91242509 - 18 - Overall, Opposer’s strength evidence under the fifth DuPont factor does not rise to the level of demonstrating that its Wave Design Marks fall at the far end of the spectrum, so as to be considered very strong. However, the record includes impressive sales through a variety of mainstream retailers, and reflects some degree of commercial success of, and substantial consumer exposure to, the mark in the Wave Registration. Under the sixth DuPont factor, the number and nature of similar marks in use on similar goods, Applicant contends that Opposer’s wave design mark should be considered commercially weak based on use evidence of third-party registered marks consisting of or incorporating what Applicant characterizes as wave designs, with screenshots showing use for apparel, footwear and/or bags.21 See Jack Wolfskin, 116 USPQ2d at 1136 (“extensive evidence of third-party uses and registrations of paw prints indicates that consumers are not as likely confused by different, albeit similar looking, paw prints”). Proof of recent consumer exposure to third-party use of similar marks on similar goods may show commercial weakness of a mark, in that consumers have been conditioned to distinguish among similar marks based on minor differences. See Juice Generation, 115 USPQ2d at 1674. 21 Applicant also submitted a registration and use evidence relating to the mark COOPER TIRES and design for “vehicle wheels, tires for vehicle wheels.” However, the wheels and tires are too far afield from Opposer’s goods to be probative of the strength or weakness of Opposer’s marks. See In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed. Cir. 2017) (disregarding third-party registrations where the proffering party “has neither introduced evidence, nor provided adequate explanation to support a determination that the existence of I AM marks for goods in other classes, ... support a finding that registrants’ marks are weak with respect to the goods identified in their registrations”). Opposition No. 91242509 - 19 - The record includes over 40 registered marks22 with accompanying use evidence. Applicant maintains that they are sufficiently similar to Opposer’s mark to render it weak. Examples include:  Registration No. 3300502 for for “apparel, namely caps, t-shirts, sweatshirts, swimwear and rash guards,” also shown on screenshots from the Pipeline Clothes & Gear retail website: 23 22 We reject Opposer’s argument that these registration printouts from the TESS database should not be considered without accompanying printouts from the Assignments database. The TESS printouts include ownership information, and Applicant included evidence that most of the third-party registered marks are in use. For the purpose for which this evidence was offered, we do not consider accompanying printouts from the Assignments database necessary. 23 22 TTABVUE 315-18. Opposition No. 91242509 - 20 -  Registration No. 3850620 for for goods that include clothing and backpacks, also shown on screenshots from the Rip Curl retail website: 24  Registration No. 3179301 for for goods that include clothing, also shown on screenshots for the Orange Coast College website that offers the following shirt for sale: .25 24 22 TTABVUE 328-31. 25 22 TTABVUE 354-57. Opposition No. 91242509 - 21 -  Registration No. 5465884 for for goods that include backpacks, also displayed on the following screenshot from the Costa website that shows the mark on clothing: 26 26 22 TTABVUE 366-68. Opposition No. 91242509 - 22 -  Registration No. 5573700 for for goods that include clothing, as also shown on t-shirts offered for sale on the Dive N’ Surf website: 27  Registration No. 4889950 for for clothing goods, as also shown on the Wetsuit Wearhouse website, including on a wetsuit offered for sale: 27 22 TTABVUE 374-78. Opposition No. 91242509 - 23 - 28  Registration No. 4906063 for for clothing goods that include t- shirts and hats, as also shown on the website: 28 22 TTABVUE 387-88. Opposition No. 91242509 - 24 - 29 29 23 TTABVUE 13-21. Opposition No. 91242509 - 25 -  Registration No. 4877407 for for goods that include beachwear, hats and t-shirts, as also shown on the KeNalu website: 30 30 23 TTABVUE 27-30. Opposition No. 91242509 - 26 -  Registration No. 5935558 for for clothing, as also shown on the RDW Apparel website featuring hats with the mark: 31 31 23 TTABVUE 55-57. Opposition No. 91242509 - 27 -  Registration No. 5485728 for for clothing goods including t-shirts, as also shown on the website below: 32  Registration No. 593334 for for clothing items, as also shown on the Chronic website featuring various goods with the mark: 32 23 TTABVUE 67-74. Opposition No. 91242509 - 28 - 33 33 23 TTABVUE 94-100. Opposition No. 91242509 - 29 - Under the sixth DuPont factor, we consider third-party use evidence of similar marks to determine if it “show[s] that consumers have been educated to distinguish between different marks on the basis of minute distinctions.” Juice Generation, 115 USPQ2d at 1674. Here, we find that the third-party wave designs relied on by Applicant generally are not similar to Opposer’s mark in the Wave Registration, and many also contain other matter in addition to their wave design elements. Thus, while the record shows that third parties often use wave designs, which we have noted are suggestive for surf and beach apparel and eyewear, the evidence does not show frequent use of wave designs similar to Opposer’s. We find the evidentiary record here distinguishable from that in Jack Wolfskin, 116 USPQ2d at 1136, where the third-party evidence showed “different, albeit similar looking, paw prints.” Unlike in Jack Wolfskin, the nature of the third-party wave designs in this case are far afield from Opposer’s mark in appearance and overall commercial impression. For example, some of the third-party wave designs form stylized letters (such as a C for COSTA34 or a G for GLIDESOUL35), some look more like swirls that form full circles,36 some include multiple waves,37 some incorporate 34 22 TTABVUE 366-68. 35 22 TTABVUE 387-88. 36 E.g., , 23 TTABVUE 152-54. 37 E.g., , 23 TTABVUE 80-82. Opposition No. 91242509 - 30 - other design elements such as sunsets38 and surf boards,39 others look more like abstract shapes than waves,40 and, as reflected in the examples already shown, many include distinctive wording that consumers are more likely to focus on for source- indication. Even the designs highlighted by Applicant in its Brief,41 presumably those Applicant considers most similar to Opposer’s, bear out that the third-party marks are too disparate in their visual renditions to show that Opposer’s specific design is weak. We note in addition that the third-party use evidence relates mostly to the Class 25 clothing goods, with very little evidence involving the goods in opposed Classes 9 and 18. Given the nature and quantity of the third-party use evidence, we decline to find Opposer’s Wave Design Mark weak under the sixth DuPont factor. Overall, we find Opposer’s mark to be inherently distinctive but suggestive, with a modest degree of commercial strength that falls short of being famous. C. Similarity of the Marks With respect to Applicant’s and Opposer’s marks, we must compare them “in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imps., 73 USPQ2d at 1691 (quoting DuPont, 177 USPQ at 567). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In 38 E.g., , 23 TTABVUE 48-50. 39 E.g. , 23 TTABVUE 70-72. 40 E.g., , 23 TTABVUE 102-06. 41 26 TTABVUE 24-25. Opposition No. 91242509 - 31 - re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018), aff’d mem., 777 Fed. Appx. 516 (Fed. Cir. 2019) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). The test assesses not whether the marks can be distinguished in a side-by-side comparison, but rather whether their overall commercial impressions are so similar that confusion as to the source of the goods offered under the respective marks is likely to result. Cai v. Diamond Hong, 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018); Coach Servs., 101 USPQ2d at 1721; see also Edom Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012). The focus is on the recollection of the average purchaser, who normally retains a general rather than a specific impression of trademarks. See Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). We also bear in mind that, given the identical-in-part goods, “the degree of similarity necessary to support a conclusion of likely confusion declines.” Century 21 Real Estate v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992). We compare Opposer’s mark to Applicant’s mark, and find them quite similar visually and in their connotations and commercial impressions.42 Diamond Alkali Co. v. Dundee Cement Co., 343 F.2d 781, 145 USPQ 42 With these two design-only marks, we find sound to be neutral in our comparison because “[a] design is viewed, not spoken.” In re Electrolyte Labs., Inc., 913 F.2d 930, 16 USPQ2d 1239, 1240 (Fed. Cir. 1990). Opposition No. 91242509 - 32 - 211, 213 (CCPA 1965) (“When symbol marks such as these are being considered, appearance is most significant.”). Both designs consist of two dark curved shapes, opening to the right side, with a light area in between the dark curves. The inner dark shapes look like crescents and are highly similar in thickness, position and size in regards to the entire mark. While the outer shapes differ somewhat, both are curves that overhang the inner shapes at the top, but do not extend beyond the inner shapes at the bottom. In both marks, the light area sandwiched in between the dark curves is open on one end (Opposer’s mark) or both ends (Applicant’s mark) and could either be perceived as lighter curves forming part of the design, or as background behind the dark curved shapes. Both designs overall thicken in the bend of the curve, and appear thinner at the ends. Overall, they look similar. See, e.g., In re Steury Corp., 189 USPQ 353 (TTAB 1975) (finding a design mark consisting of three stacked broad horizontal bars with curved ends to be similar, even if not identical, to another design mark consisting of two stacked broad horizontal bars with curved ends); Matsushita Elec. Indus. Co. v. Sanders Assocs., Inc., 177 USPQ 720 (TTAB 1973) (finding two design marks, each consisting essentially of a triangle design created by three arrows radiating from the center, to be similar, even if not identical). While, as explained and shown above, Applicant supplied third-party use and registration evidence pertaining to other wave design marks, none of them bear as close a resemblance to Opposer’s mark as Applicant’s mark does. Some of the third- party designs are more or less stylized and are accompanied by other matter. Unlike the marks at issue, none of the third-party marks shows standalone designs featuring Opposition No. 91242509 - 33 - two similarly-shaped dark curves, open to the right, separated by a lighter space or strip in between.43 While Opposer describes its mark as a stylized wave and Applicant describes its mark as a stylized T, we find that consumers would not draw this distinction between them. Given the absence of a cross-bar, we find that consumers viewing Applicant’s design by itself would not perceive the design as a T. See Steury Corp, 189 USPQ at 355 (“Applicant’s mark, although intended to be a stylized letter ‘S’ as a play on its trade name, would possibly be recognized as only such by those individuals who encounter the mark used by applicant in association with the name ‘Steury’”). We find it likely that some consumers would view both marks as stylized waves, while others could view both marks as stylized flames, and still others could view them both as abstract designs. Regardless, we see no compelling reason that consumers would differentiate what one design represents from what the other represents. Rather, the designs are visually similar, and create similar connotations and commercial impressions. This factor weighs in favor of likelihood of confusion. D. Absence of Actual Confusion “[E]xtended periods of side-by-side sales without actual confusion may tend to refute a likelihood of confusion....” Han Beauty, Inc. v. Alberto-Culver Co., 236 F.3d 1333, 57 USPQ2d 1557, 1560 (TTAB 2001); see also DuPont, 177 USPQ at 567 43 These findings are borne out by an examination of the third-party marks excerpted in Applicant’s Brief, presumably highlighting those it considers most similar to Opposer’s. 26 TTABVUE 24-25. Opposition No. 91242509 - 34 - (identifying seventh and eighth DuPont factors as “[t]he nature and extent of any actual confusion,” and “[t]he length of time during and conditions under which there has been concurrent use without evidence of actual confusion”). Applicant points to testimony by Mr. Kurtz that since it began use of its mark, “no one … has ever questioned or confused [Applicant’s mark] with any of O’NEILL’s trademarks, including the wave design.”44 As to when actual use commenced, Mr. Kurtz testified that “[u]se on athletic apparel and sportswear began for tee shirts in October, 2017; use on bags began in February, 2018; use on sporting goods began in March 2019 and use on the full athletic apparel line began in May, 2019.”45 Although the Kurtz Declaration includes photographs of some goods bearing the mark, neither the testimony, nor any other evidence in the record, establishes the conditions under which concurrent use of the marks has occurred, including the volume of Applicant’s business, so as to provide a sense of the “opportunity for confusion to have occurred.” See Barbara’s Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1287 (TTAB 2007) (finding that where the respective marks coexisted in the marketplace for at least nine years, absence of actual confusion was nonetheless “of little probative value” because of the absence of a significant opportunity for such confusion to occur, given “the minimal scope of applicant’s actual use of her mark in the marketplace”). 44 24 TTABVUE 87. 45 Id. Opposition No. 91242509 - 35 - Accordingly, we attribute little probative value to the testimony regarding lack of actual confusion because of the absence of evidence regarding the conditions – such as Applicant’s geographic scope or volume of sales – under which there has been concurrent use. In addition, Mr. Kurtz’s information about the relatively short time that Applicant’s mark has been in actual use further diminishes the probative value of lack of actual confusion. “The absence of any reported instances of confusion is meaningful only if the record indicates appreciable and continuous use by applicant of its mark for a significant period of time in the same markets as those served by opposer under its marks.” Citigroup Inc. v. Capital City Bank Grp., Inc., 94 USPQ2d 1645, 1660 (TTAB 2010), aff’d, 637 F.3d 1344, 98 USPQ2d 1253 (Fed. Cir. 2011). We find the actual confusion factors neutral. E. Degree of Care in Purchasing Applicant makes a brief, unsupported argument “that consumers, when purchasing clothing, sunglasses and related items, exercise a great amount of care, as buying clothes is a very personal choice, is subjective by its very nature, and consumers are conscious of fashions, brands and price points.”46 We find that such items constitute ordinary consumer goods purchased by the general public. See Stone Lion Capital, 110 USPQ2d at 1163 (affirming that TTAB properly considered all potential purchasers for recited services, including both sophisticated and unsophisticated investors, since precedent requires consumer care for likelihood-of- 46 26 TTABVUE 23 (Applicant’s Brief). Opposition No. 91242509 - 36 - confusion decision be based “on the least sophisticated potential purchasers”). The record includes evidence that the overlapping goods at issue in this case include those sold at very modest price points47 that would not suggest a greater than ordinary degree of care in purchasing. See Recot Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000) (“When products are relatively low-priced and subject to impulse buying, the risk of likelihood of confusion is increased because purchasers of such products are held to a lesser standard of purchasing care.”). We find this factor neutral. V. Conclusion Based on the close similarity of Applicant’s mark to Opposer’s modestly strong mark, and given that each opposed International Class in the application is for in- part legally identical goods that travel in the same channels of trade to overlapping classes of purchasers, we conclude that a likelihood of confusion exists with respect to the goods in each of Applicant’s opposed International Classes. Decision: The opposition is sustained, and the following opposed goods subject to this proceeding will be deleted from the application: Protective boxing helmets; sunglasses; scales, scales with body mass analyzers; bathroom scales; body fat scales for household use; digital bathroom scales; weighing scales; weighing equipment, namely, scales and balances; headphones, earbuds, wireless headsets for use with mobile telephones, armbands specifically adapted for personal electronic devices, namely, mobile telephones and MP3 players; electronic publications, namely, exercise manuals and product manuals concerning health, fitness 47 E.g., 21 TTABVUE 5 (Nasr Declaration). For example, Opposer’s t-shirts sold under the mark cost approximately $25 or less. Id. Opposition No. 91242509 - 37 - and exercise, all recorded on computer media; mouth guards for athletic use; head guards for sports in International Class 9; Luggage; all[-]purpose sports bags, backpacks and waistpacks in International Class 18; and Athletic and exercise sportswear, namely, men's, women's, and children’s swimwear, jeans, leather jackets, and collared sports shirts; Active wear for men and women, namely, boxer shorts, bicycle shorts, gym shorts, pants, pullovers, short sleeve shirts, sweatshirts, sweat shorts, sweat pants, sweat suits, t-shirts, tank tops, warm-up suits; Athletic footwear and headwear in International Class 25. The application will proceed with the remaining goods and services in International Classes 5, 16, 21, 27, 28, 32, 41 and 44 that were not subject to this opposition.