Speedo Holdings B.V.v.Zura Sports, Inc.

Trademark Trial and Appeal Board

Oct 15, 1997

OPP (T.T.A.B. Oct. 15, 1997)

THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB 10/15/97
Paper No. 20
JQ
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Speedo Holdings B. V.
v.
Zura Sports, Inc.
_____
Opposition No. 97,621
to application Serial No. 74/559,360
filed on August 10, 1994
_____
Glenn Mitchell and Mary F. Leheny of Fross Zelnick Lehrman
& Zissu for Speedo Holdings B. V.
Gail L. Morrissey of Standley & Gilcrest for Zura Sports,
Inc.
______
Before Sams, Simms and Quinn, Administrative Trademark
Judges.
Opinion by Quinn, Administrative Trademark Judge:
An application has been filed by Zura Sports, Inc. to
register the mark SPEEDRAY for “water sports equipment,
namely kickboards.”1

1 Application Serial No. 74/559,360, filed August 10, 1994,
alleging a bona fide intention to use the mark in commerce.
Opposition No. 97,621
2
Registration has been opposed by Speedo Holdings B. V.
under Section 2(d) of the Act on the ground that
applicant’s mark, if applied to applicant’s goods, would so
resemble opposer’s previously used and registered SPEEDO
marks for a full line of swimwear, water sports equipment
and gear, including kickboards, as to be likely to cause
confusion.
Applicant, in its answer, denied the salient
allegations of likelihood of confusion.
The record consists of the pleadings; the file of the
involved application; certified status and title copies of
opposer’s pleaded registrations, excerpts from printed
publications retrieved from the NEXIS database, and
applicant’s responses to opposer’s interrogatories and
requests for admissions, all introduced by way of opposer’s
notice of reliance. Applicant attempted to introduce, by a
notice of reliance, a computer print out retrieved from a
data base entitled “Brands and Their Companies.” Both
parties filed briefs on the case.2
Before turning to the merits of the likelihood of
confusion claim, we direct our attention to the evidentiary
objections made by each party in their briefs on the case.

2 Opposer requested an oral hearing, but later withdrew the
request.
Opposition No. 97,621
3
We first turn to applicant’s hearsay objection to certain
of the printed publications listed in opposer’s notice of
reliance. For the reasons set forth by opposer in its
reply brief, the objection is overruled. This evidence is
admissible for what the publication excerpts show on their
face (but not for the truth of the matters contained
therein). Midwest Plastic Fabricators Inc. v. Underwriters
Laboratories Inc., 12 USPQ2d 1267 (TTAB 1989), aff’d, 906
F.2d 1568, 15 USPQ2d 1359 (Fed. Cir. 1990). With respect
to opposer’s objection, opposer contends that the computer
print out submitted by applicant is inadmissible hearsay
and is incompetent evidence of third-party uses of similar
marks. We agree. The search report is neither a printed
publication nor an official record as contemplated by
Trademark Rule 2.122(e). Weyerhaeuser Co. v. Katz, 24
USPQ2d 1230 (TTAB 1992). Accordingly, opposer’s objection
is sustained and the print out does not form part of the
record for our consideration.
We now turn to the claim of priority and likelihood of
confusion. Opposer has made of record the following
registrations3: SPEEDO for “men’s and women’s sports shirts
both knitted and woven, walking shorts, leisure jackets for

Opposition No. 97,621
4
informal wear, underwear and swim suits”,4 “men’s and
women’s sport shirts, both knitted and woven, walking
shorts, leisure jackets for informal wear, underwear, swim
suits, jumpers, slacks, track suits and bathing caps”,5
“protective goggles”,6 SPEEDO and SPEEDO and design for
“transportable swimming pools, non-motorized surfboards,
kickboards, balls, balloons, bar-bells, horizontal bars,
bats for games, body developers in the nature of exercising
machines, golf clubs, dumb-bells, hockey sticks, squash
racquets, tennis racquets and tennis nets, roller skates,
skate boards, rowing exercisers, cricket and golf bags,
swimming paddles (hand), [and] flippers”,7 SPEEDO and design
for “footwear”,8 and SPEEDO and design for “eye protection
goggles for sports activities, surfing, sailing and
windsurfing”.9 In view of opposer’s ownership of valid and

3 Registration No. 1,464,368 was canceled by the Office under
Section 8.
4 Registration No. 718,276, issued July 11, 1961; renewed.
5 Registration No. 1,011,585, issued May 27, 1975; renewed.
6 Registration No. 1,012,121, issued June 3, 1975; renewed.
7 Registration Nos. 1,169,452 and 1,169,451, respectively, issued
September 15, 1981; combined Sections 8 and 15 affidavit filed.
8 Registration No. 1,183,860, issued December 29, 1981; combined
Sections 8 and 15 affidavit filed.
9 Registration No. 1,593,159, issued April 24, 1990; combined
Sections 8 and 15 affidavit filed.
Opposition No. 97,621
5
subsisting registrations for its pleaded marks, there is no
issue with respect to opposer’s priority. King Candy Co.,
Inc. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182
USPQ 108 (CCPA 1974).
Our determination under Section 2(d) of the Act is
based on an analysis of all of the probative facts in
evidence that are relevant to the factors bearing on the
likelihood of confusion issue. In re E. I. du Pont de
Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). As
dictated by the evidence, different factors may play
dominant roles in determining likelihood of confusion.
Kenner Parker Toys v. Rose Art Industries, 963 F.2d 350, 22
USPQ2d 1453, 1456 (Fed. Cir. 1992). The factors deemed
pertinent in the proceeding now before us are discussed
below.
With respect to the goods, both parties use their
marks in connection with identical products, namely
kickboards. In addition, opposer’s marks are used on
swimwear and water sport goods which are closely related to
kickboards. The goods clearly travel in the same channels
of trade and are bought by the same classes of ordinary
purchasers.
Turning next to the marks SPEEDO (with or without the
design) and SPEEDRAY, we find that they are different in
Opposition No. 97,621
6
sound and appearance and that they are significantly
different in overall commercial impression. We recognize,
of course, that the marks are similar to the extent that
both have a “SPEED” prefix. However, it can hardly be
disputed that the term “speed” is suggestive when used in
connection with kickboards and, for that matter, with any
of a number of the swimming products listed in opposer’s
registrations.10 In any event, the marks must be compared
in their entireties, and, in doing so, we conclude that the
marks are different. Tektronix, Inc. v. Daktronics, Inc.,
534 F.2d 915, 189 USPQ 693 (CCPA 1976). Opposer’s mark is
a play on the word “speed” alone. Applicant’s mark, on the
other hand, likely would be perceived as a play on “ray” or
“stingray”, a sea creature that glides swiftly through the
water.11 Applicant’s mark SPEEDRAY conjures up that image,
suggesting that the user of applicant’s kickboard will move
through the water in the same fashion. Thus, while both
marks convey the idea of speed, SPEEDO and SPEEDRAY do so
in entirely different ways.

10 The Board takes judicial notice of the dictionary listing for
the word “speed”: “the act, action or state of moving swiftly.”
Webster’s Third New International Dictionary (1976).
11 Applicant, in its response to interrogatory no. 5, indicates
that the meaning of the mark “is that the product combines speed
with a distinctive shape.”
Opposition No. 97,621
7
We note applicant’s admission that “the mark SPEEDO is
famous in the field of swimwear.” Applicant denied,
however, that “the mark SPEEDO is famous (or well known) in
the field of water sports equipment and accessories.” We
further note applicant’s admission that “it is not aware of
any trademark consisting of the term SPEED, alone or in
conjunction with other terms, for swimwear or water sport
equipment or accessories.” Moreover, opposer’s NEXIS
evidence attests to the widespread exposure of opposer’s
SPEEDO marks in the marketplace. Although the factors of
the fame of opposer’s SPEEDO marks in connection with
swimwear, and the absence of any third-party uses of
“speed” marks are important factors, we simply find that
these factors are outweighed by the significant differences
in overall commercial impressions of the marks. G.H. Mumm
& Cie v. Desnoes & Geddes, Ltd., 917 F.2d 1292, 16 USPQ2d
1635 (Fed. Cir. 1990); Kellogg Co. v. Pack’em Enterprises,
Inc., 951 F.2d 330, 21 USPQ2d 1142 (Fed. Cir. 1991), aff’g
14 USPQ2d 1545 (TTAB 1990); and Stouffer Corp. v. Health
Valley Natural Foods Inc., 1 USPQ2d 1900 (TTAB 1986),
aff’d, No. 87-1292, (Federal Circuit Sept. 30, 1987).
With respect to actual confusion, opposer points to an
interrogatory answer (no. 20(a)), contending that the
record shows at least one instance of actual confusion:
Opposition No. 97,621
8
“Applicant has not witnessed or obtained any knowledge or
information regarding confusion or the likelihood of
confusion, however, on or about February, 1995, Mr. Paul A.
Reeder [applicant’s president] received a single phone call
in which he believes the caller asked for information
regarding the ‘SPEEDORAY’”. This is hardly probative
evidence of actual confusion. We can only speculate as to
the reason behind the alleged misstatement. The absence of
probative evidence of actual confusion, while a factor to
be considered, is not significant here. Although the
record reveals that applicant has commenced use of its
mark, the record is silent regarding the extent of the use.
Thus, we have no way of gauging the opportunity for actual
confusion to arise in the marketplace. In any event, the
applicable test is likelihood of confusion.
Finally, opposer questions applicant’s intent in
adopting the mark SPEEDRAY. Opposer points to applicant’s
knowledge of opposer’s mark prior to applicant’s adoption
of the mark SPEEDRAY. Suffice it to say that this fact,
standing alone, does not demonstrate any bad faith adoption
by applicant. Further, opposer’s comparison of the design
feature in its mark with the shape of applicant’s kickboard
(as shown in applicant’s advertisements) is stretching the
bounds of imagination.
Opposition No. 97,621
9
Based on the relatively small record before us, we see
the likelihood of confusion claim asserted by opposer as
amounting to only a speculative, theoretical possibility.
Language by our primary reviewing court is helpful in
resolving the likelihood of confusion controversy in this
case:
We are not concerned with mere
theoretical possibilities of confusion,
deception or mistake or with de minimis
situations but with the practicalities
of the commercial world, with which the
trademark laws deal.
Electronic Design & Sales Inc. v. Electronic Data Systems
Corp., 954 F.2d 713, 21 USPQ2d 1388, 1391 (Fed. Cir. 1992),
citing Witco Chemical Co. v. Whitfield Chemical Co., Inc.,
418 F.2d 1403, 1405, 164 USPQ 43, 44-45 (CCPA 1969), aff'g
153 USPQ 412 (TTAB 1967).
Here, we find that consumers familiar with the mark
SPEEDO for swimwear and water sports equipment, including
kickboards, would not believe that applicant’s SPEEDRAY
kickboards emanate from the same source. The difference
between the marks in overall commercial impressions is so
significant that confusion is not likely to occur even when
the marks are applied to identical and/or closely related
goods.
Decision: The opposition is dismissed.
Opposition No. 97,621
10
J. D. Sams
R. L. Simms
T. J. Quinn
Administrative Trademark
Judges, Trademark Trial
and Appeal Board