Terry A. Klein

Trademark Trial and Appeal Board

May 8, 2014

No. 85541416 (T.T.A.B. May. 8, 2014)

This Opinion is Not a
Precedent of the TTAB

Mailed: May 8, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Klein
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Serial No. 85541416
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Matthew H. Swyers of The Trademark Company PLLC,
for Terry A. Klein.
John Dwyer, Trademark Examining Attorney, Law Office 116,
Michael W. Baird, Managing Attorney.
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Before Bucher, Bergsman and Wolfson,
Administrative Trademark Judges.

Opinion by Bucher, Administrative Trademark Judge:
Terry A. Klein (“Applicant”) seeks registration on the Principal Register of the
mark Cameltoes (in standard character format) for socks in International Class 25.1
The Trademark Examining Attorney has refused registration of the mark under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), having determined that
Applicant’s mark so resembles the previously registered mark CAMEL TOES for

1 Application Serial No. 85541416 was filed on February 13, 2012, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
Serial No. 85541416
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“clothing; namely, caps and shirts” in International Class 25,2 that use of
Applicant’s mark in connection with Applicant’s goods is likely to cause confusion,
to cause mistake, or to deceive.
After the refusal was made final, Applicant appealed, his request for
reconsideration was denied, and Applicant and the Examining Attorney filed briefs.
We affirm the refusal to register.
Likelihood of Confusion Analysis
Our determination under Section 2(d) is based upon an analysis of all probative
facts in evidence that are relevant to the factors bearing on the issue of 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 and/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 concerning which Applicant or the Trademark Examining Attorney
submitted argument or evidence.

2 Registration No. 1872570 issued to William O. Williams on January 10, 1995; renewed.
Serial No. 85541416
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A. The Similarity of the Marks
We turn first to the du Pont likelihood of confusion factor focusing on the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont de Nemours & Co., 177
USPQ at 567. In comparing the marks, we are mindful that the test is not whether
the marks can be distinguished when subjected to a side-by-side comparison, but
rather whether the marks are sufficiently similar in terms of their overall
commercial impression so that confusion as to the source of the goods offered under
the respective marks is likely to result. San Fernando Electric Mfg. Co. v. JFD
Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons
Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d
unpublished, No. 92-1086 (Fed. Cir. June 5, 1992).
We note that these marks are phonetically identical. As to appearance, the
presence or absence of a space between the two words (Cameltoes vs. CAMEL
TOES) is an inconsequential difference which, even if noticed or remembered by
some consumers, would not serve to distinguish these marks. See Seaguard Corp. v.
Seaward International, Inc., 223 USPQ 48, 51 (TTAB 1984) (SEA GUARD and
SEAGUARD are “essentially identical”); In re Best Western Family Steak House, Inc.,
222 USPQ 827 (TTAB 1984) (“there can be little doubt that the marks
[BEEFMASTER for restaurant services and BEEF MASTER for frankfurters and
bologna] are practically identical and indeed applicant has not argued otherwise.”)
(Emphasis in the original).
Serial No. 85541416
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We agree with the Trademark Examining Attorney that the connotations and
overall commercial impressions of these two marks are identical. In any context,
they seem to suggest the toes of a camel. The connotations and
commercial impressions of the respective marks do not change
when considered in connection with the Applicant’s and
Registrant’s goods. In fact, the nature of the toe-line on
Applicant’s tabi socks provides even greater emphasis on the idea
of the split- or cloven-hooves of a camel.
3
Finally, we note that Applicant does not seriously contest this particular factor:
There can be little doubt as to the similarities between
the marks. Indeed, the only distinction is a space between
the word CAMEL and TOES which is of little trademark
significance.
Applicant’s brief at 9.
Accordingly, this critical du Pont factor favors a finding of likelihood of
confusion.
B. The number and nature of similar marks in use on similar goods
In spite of his concessions on the similarity of the marks, Applicant argues that
this factor is less significant because under the sixth du Pont factor, focusing on the
number and nature of similar marks, the registered mark is weak or diluted in the
clothing class. As a result, Applicant contends that this factor mitigates the
ostensible harm of the first du Pont factor (e.g., overall substantial identity of the

3 This imagery is drawn from a third-party website, http://www.sockdreams.com, and was
attached to Applicant’s request for reconsideration of August 20, 2013, at 22 of 45. It
pictures Tabi socks, or split-toe socks of a type worn in Japan since the sixteenth century.
Serial No. 85541416
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marks, discussed above) and balances out in favor of a determination of no
likelihood of confusion. In support of this position, Applicant points to the following
registered marks in the clothing field:
CAMEL4 LE CHAMEAU5
6
NATURECAMEL7 CAMELBAK8
COACH & CAMEL9 CamelAmmo10
11
12
CAMEL
CLUB 2413
RED CAMEL14
15
SWEETCAMEL16
TOES ON THE NOSE17
TEDDY TOES18 Monkey-Toes19
Toes Gone Wild20 PIGGY TOES21
TRENDY TOES22 Toez Clōz23

4 Registration No. 1059939 issued on February 22, 1977; second renewal.
5 Registration No. 3649215 issued on July 7, 2009. The English translation of “LE
CHAMEAU” is the camel.
6 Registration No. 2359590 issued on June 20, 2000; renewed.
7 Registration No. 3902981 issued on January 11, 2011.
8 Registration No. 4135697 issued on May 1, 2012.
9 Registration No. 1627294 issued on December 11, 1990; renewed.
10 Registration No. 3769120 issued on March 30, 2010.
11 Registration No. 3303170 issued on October 2, 2007; Section 8 affidavit accepted. The
non-Latin characters in the mark transliterate to “Xi Yu Luo Tuo” and this means “The
camel in the West China where is the best place for the camel to live.”
12 Registration No. 3580036 issued on February 24, 2009.
13 Registration No. 3926980 issued on March 1, 2011.
14 Registration No. 1572086 issued on December 19, 1989; second renewal.
15 Registration No. 1743260 issued on December 29, 1992; renewed.
16 Registration No. 2978661 issued on July 26, 2005.
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We disagree with Applicant’s conclusions. These live registrations have little
probative value inasmuch as they are not evidence of actual use, and we cannot
assume that the public has been exposed to those marks. See Smith Bros. Mfg. Co.
v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA 1973) (the purchasing
public is not aware of registrations reposing in the United States Patent and
Trademark Office). See also In re Hub Distributing, Inc., 218 USPQ 284, 285 (TTAB
1983). Moreover, while each of these clothing marks contain the word “Camel” or
“Toes,” none of these marks include both words “Camel” and “Toes.” Most of these
marks have other arbitrary matter that creates, for each mark, totally different
connotations and overall commercial impressions from Applicant’s and Registrant’s
substantially identical marks.
In view thereof, we do not agree with Applicant’s argument that consumers have
become so conditioned by their exposure to a number of “Camel” and “Toes” marks
used in connection with clothing such that they are able to distinguish between the
relevant marks herein based upon negligible differences in the marks We find that
this du Pont factor also favors a finding of likelihood of confusion.

17 Registration No. 1812985 issued on December 21, 1993; second renewal.
18 Registration No. 1838745 issued on June 7, 1994; renewed.
19 Registration No. 3812678 issued on July 6, 2010.
20 Registration No. 3727011 issued on December 22, 2009.
21 Registration No. 3655883 issued on July 14, 2009.
22 Registration No. 2498917 issued on October16, 2001; renewed.
23 Registration No. 3682461 issued on September 15, 2009.
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C. Relationship of the Goods and Channels of Trade
The Trademark Examining Attorney provided, for the record, evidence from the
United States Patent and Trademark Office’s X-Search database – a sample of use-
based, third-party trademarks registered for use in connection with similar types of
goods as those identified by Applicant and by Registrant. Specifically, this evidence
shows that socks, shirts, and caps are of a kind that often emanate from a single
source under a single mark. Additionally, the Trademark Examining Attorney also
provided, for the record, online evidence consisting of representative webpages
demonstrating that socks, along with caps and shirts, are frequently sold through
the same channels of trade to the same potential consumers.
Although Applicant argues that his mark is used exclusively with split toe,
Japanese Tabi-style socks, his identification of goods contains no such limitation.
The goods are identified broadly and without limitations as merely “socks,” which
encompasses all types of socks, including traditional, run-of-the-mill socks. The
question of likelihood of confusion is determined based upon the description of the
goods stated in the application and registration at issue, not on extrinsic evidence of
actual use. See Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1722 (Fed. Cir. 2012).
In discussing the respective trade channels, Applicant argues that “it appears
that the [Registrant’s] goods sold under the [CAMEL TOES] mark do not currently
have any trade channels” ... and that “the [owner of the CAMEL TOES] mark does
not appear to be marketing [its] goods at all.” See Applicant’s Brief at 12-14.
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However, the presumption under Trademark Act Section 7(b), 15 U.S.C. § 1057(b) is
that the Registrant is the owner of the mark and that use of the mark extends to all
goods identified in the registration. The presumption also implies that the
Registrant operates in all normal channels of trade and reaches all classes of
purchasers of the identified goods. In re Melville Corp., 18 USPQ2d 1386, 1389
(TTAB 1991). Absent a cancellation petition, such an attempt at collaterally
attacking the cited registration will not be entertained in this ex parte proceeding.
See In re Dixie Restaurants, Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir.
1997); In re Peebles Inc., 23 USPQ2d 1795, 1797 n.5 (TTAB 1992).
Finally, we note that in situations such as this where the marks of Registrant
and Applicant are virtually identical, the relationship between the relevant goods
need not be as close to support a finding of likelihood of confusion. See In re Shell
Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993).
Hence, these critical du Pont factors also favor a finding of likelihood of
confusion.
D. The conditions under which and buyers to whom sales are made
Applicant also argues that the average purchaser of his involved goods would
exercise a high level of care in choosing the goods, thereby minimizing any
likelihood of confusion. However, Applicant’s affidavit on this point is of limited
probative value inasmuch as it lacks sufficient factual basis for the declarant’s
belief.
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Although Applicant alleges that his customers are a small class of sophisticated
purchasers “seeking Japanese Tabi-socks,”24 his own evidence also suggests, to the
contrary, that “Lots of people wear Tabi socks ... .”25 And as noted above, Applicant’s
goods are identified as “socks,” not “tabi socks.” As to Registrant’s goods, the
presumption under Section 7(b) of the Lanham Act is that Registrant operates in all
normal channels of trade and reaches all classes of purchasers of caps and shirts –
both sophisticated and unsophisticated purchasers. In re Melville Corp., 18 USPQ2d
at 1389.
Inasmuch as virtually everyone in this country purchases or wears caps, shirts
and socks, we agree with the Trademark Examining Attorney that it is logically
difficult to conclude that the entire population of the United States is to be deemed
“sophisticated.” This du Pont factor, at best for Applicant, is a neutral factor.
E. Weighing the factors
Having found that the marks are substantially identical, that the registered
mark is neither weak nor diluted in the clothing field, that the respective goods are
closely related and presumably move through overlapping trade channels to
ordinary consumers of such goods, we find a likelihood of confusion herein.
Decision: The refusal to register Applicant’s mark Cameltoes under Section
2(d) of the Lanham Act is hereby affirmed.

24 See Applicant’s Request for Reconsideration, Exhibit 3, Affidavit of Terry A. Klein.
25 Id.