TMNAB, LLC

Trademark Trial and Appeal Board

Mar 14, 2008

No. 78916114 (T.T.A.B. Mar. 14, 2008)

Mailed: March 14, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
________

In re TMNAB, LLC
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Serial No. 78916114
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Marc E. Hankin of Hankin Patent Law, A Professional Corporation
for TMNAB, LLC.

April K. Roach,1 Trademark Examining Attorney, Law Office 115
(Tomas V. Vlcek, Managing Attorney).
_______

Before Holtzman, Drost and Zervas, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

An application has been filed by TMNAB, LLC to register the
mark shown below for "shirts, vests, sweatshirts, jackets, pants,
short pants, underwear, belts, hats and socks," in Class 25.2
The application states that "the literal element of the mark
consists of A."

1 This case was reassigned to the above examining attorney to write the
appeal brief.

2 Application Serial No. 78916114, filed June 23, 2006 based on an
allegation of a bona fide intention to use the mark in commerce.

THIS OPINION IS
NOT A PRECEDENT OF
THE TTAB
Serial No. 78916114
2

The trademark examining attorney has refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant's mark, when applied to applicant's goods, so resembles
the mark shown below for the following goods, as to be likely to
cause confusion.3

(Based on Use in Commerce) Ski wear for men, women
and children, namely ski suits, ski pants, ski tops,
ski masks, ski gloves, thermal underwear, and
underwear; sports wear and accessories for men, women
and children, namely tops, sweaters, pants, shirts,
shorts, blouses, coats, suits, blanket coats, T-
shirts, wind resistant jackets, bathing suits, socks,
belts, hats, toques, caps, scarves, gloves and
mittens; (Based on 44(e) Ski wear for men, women and
children, namely ski suits, ski pants, ski masks, ski
gloves, thermal underwear, and underwear; sports wear
and accessories for men, women and children, namely,
sweaters, pants, shirts, shorts, blouses, coats,
suits, blanket coats, T-shirts, wind resistant
jackets, bathing suits, socks, belts, hats, toques,
caps, scarves, gloves and mittens. In Class 25.

3 Registration No. 3135353, issued August 29, 2006.
Serial No. 78916114
3
When the refusal was made final, applicant appealed. Briefs
have been filed.4
Our determination under Section 2(d) 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). In any likelihood of confusion analysis, however, two key
considerations are the similarities or dissimilarities between
the marks and the similarities or dissimilarities between the
goods or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
We turn first to the goods. Applicant's goods, which
include shirts, jackets, pants, short pants, belts, hats and
socks, are identical or legally identical to registrant's items
of sportswear which include shirts, wind resistant jackets,
pants, shorts, belts, hats and socks. The respective goods are
otherwise closely related articles of clothing and accessories.
The examining attorney has submitted a number of use-based third-
party registrations showing, in each instance, a mark which is
registered for the various items of clothing listed in the
application, on the one hand, and goods listed in the cited
registration, such as sweaters, scarves, gloves, underwear,

4 The examining attorney has properly objected to listing of third-
party registrations attached to applicant's brief. This evidence is
untimely and has not been considered. See Trademark Rule 2.142(d).
Serial No. 78916114
4
bathing suits and ski pants, on the other. Third-party
registrations, although not evidence of use of the marks in
commerce, serve to suggest that the respective goods are of a
type which may emanate from the same source. See In re Albert
Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993) and In re Mucky
Duck Mustard Co. Inc., 6 USPQ2d 1467 (TTAB 1988).
Because the goods are identical and/or closely related, and
there are no restrictions in the application or registration, we
must assume that the goods are, or will be, sold in the same
channels of trade to the same purchasers. See Genesco Inc. v.
Martz, 66 USPQ2d 1260, 1268 (TTAB 2003). In addition, the
examining attorney has submitted printouts from several retail
sporting goods websites, www.sportsauthority.com, www.modells.com
and www.dickssportinggoods.com, showing that even the more
specific goods of registrant are sold with applicant’s more
general use clothing items. For example, both everyday articles
of sportswear such as shirts, jackets, pants and hats, as well as
specialized sports apparel such as ski wear, would be encountered
by purchasers in at least some of the same channels of trade.
We turn next to the marks, keeping in mind that when marks
would appear on identical goods, the degree of similarity between
the marks necessary to support a finding of likelihood of
confusion declines. See Century 21 Real Estate v. Century Life,
970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992).
Serial No. 78916114
5
The marks in this case are both asserted to be a stylized
letter "A." As the Federal Circuit observed in In re Electrolyte
Laboratories, Inc., 913 F.2d 930, 16 USPQ2d 1239, 1240 (Fed. Cir.
1990), "the nature of stylized letter marks is that they partake
of both visual and oral indicia." However, when letter marks are
presented in a highly stylized form, they are essentially design
marks incapable of being pronounced or conveying any inherent
meaning. See Diamond Alkali Co. v. Dundee Cement Co., 52 CCPA
1216, 343 F.2d 781, 145 USPQ 211, 213 ("Symbols of this kind do
not sound." Citation omitted). See also In re Burndy Corp., 300
F.2d 938, 133 USPQ 196 (CCPA 1962).
That is the situation we have here. The letters in these
two marks are so highly stylized that in our view the marks as a
whole would likely be perceived as purely visual designs. Thus,
the question of similarity or dissimilarity turns in this case
primarily on a visual comparison of the marks. See Textron Inc.
v. Maquinas Agricolas "Jacto" S.A., 215 USPQ 162 (TTAB 1982).
The visual resemblance of these marks is striking, and the
overall commercial impression of the marks is essentially the
same. Both marks resemble an incomplete, five-pointed star, one
the reverse image of the other. These "star" designs are very
similar to each other in style and proportion. They have a
similar hand drawn appearance, using a single continuous stroke
to form the star. The stroke is bold and of similar thickness in
Serial No. 78916114
6
both marks even widening and narrowing in thickness in the same
places in the mark. In both marks the stroke ends at the same
place, that is, at the extended edge of the line that would form
the crossbar of the letter A. Both marks are missing the same
downward stroke needed to complete the star.
In its attempt to distinguish the marks, applicant points to
the fact that the marks face in opposite directions; and
applicant also contrasts what it describes as the tall, sharp,
angular and jagged edge appearance of applicant's mark with the
short, squat, blunt and rounded and smooth-edged appearance of
registrant's mark.
We disagree that these distinctions between the marks are
significant. It is well settled that marks must be compared in
their entireties, not dissected into component parts and the
minute details of each part compared with other parts. See Dan
Robbins & Associates, Inc. v. Questor Corporation, 599 F.2d 1009,
202 USPQ 100 (CCPA 1979). In the normal marketing environment,
purchasers would not usually have the luxury of examining marks
in such minute detail. Furthermore, the marks may not even be
seen at the same time. We must consider that the average
purchaser is not infallible in his recollection of trademarks and
often retains only a general, rather than a specific,
recollection of marks that he may previously have seen in the
marketplace. In re Mucky Duck Mustard Co., 6 USPQ2d 1467 (TTAB
Serial No. 78916114
7
1988). Ordinary purchasers who are familiar with registrant's
"A" and design mark on clothing, upon later encountering
applicant's mark on the identical and/or closely related items of
clothing, would not necessarily remember fine details about the
mark they had previously seen, given their imperfect recall, and
they are likely to remember the marks as being essentially the
same.
Applicant argues that the cited mark "resides in a crowded
field, and as such, it is weak as a matter of law." To support
this contention, applicant submitted a list of about 25 third-
party registrations displaying the marks and identifying the
registration numbers. Applicant claims that these marks are all
"registered in Class 25" and that they all consist of the
stylized letter "A." The various marks are grouped in "pairs" or
sets of what applicant considers to be similarly styled letters.
Contending that even slight differences in appearance were
considered sufficient to distinguish the marks from each other
and to allow them to coexist on the register, applicant concludes
that the purchasing public is "conditioned to distinguish slight
differences between design marks with the literal element 'A'" in
Class 25 and that therefore its mark should be entitled to
register as well.
At the outset, we note that these third-party registrations
are not properly of record because printouts of the registrations
Serial No. 78916114
8
were not provided. However, the previous examining attorney did
not object to the evidence on this basis, and so we have
considered it as properly of record. Nevertheless, this evidence
is of little probative value. First, third-party registrations
are not evidence of use. The existence of these marks on the
register is not evidence of what happens in the marketplace or
that customers are familiar with them. AMF Incorporated v.
American Leisure Products, Inc., 177 USPQ 268, 269 (CCPA 1973)
("little weight is to be given such registrations in evaluating
whether there is likelihood of confusion.").
Furthermore, notwithstanding that the marks in the third-
party registrations might all consist of same literal element,
"A," the designs of those marks, which is how we must view them,
are entirely different from the marks in this case. None of the
third-party marks remotely resembles the star-like shape of the
design of the letter A in registrant's mark, and none is as
similar to the cited mark as applicant's mark. Whether the
third-party marks are similar to each other is not relevant to
our analysis, and has no bearing on the question of whether the
marks in this case are likely to cause confusion.
In view of the foregoing, and because highly similar marks
are used in connection with identical and closely related goods,
we find that confusion is likely.
Serial No. 78916114
9
Decision: The refusal to register under Section 2(d) of the
Trademark Act is affirmed.