USCANTEEN, Inc.

Trademark Trial and Appeal Board

Apr 7, 2010

No. 76692826 (T.T.A.B. Apr. 7, 2010)

Decision Mailed:
April 7, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re USCANTEEN, INC.
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Serial No. 76692826
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Myron Amer of Myron Amer, P.C. for USCANTEEN, INC.

Amy Alfieri, Trademark Examining Attorney,
Law Office 109 (Dan Vavonese, Managing Attorney).
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Before Bergsman, Wellington, and Ritchie, Administrative
Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

USCANTEEN, INC. has filed an application, as amended, to
register the mark USWEAR (in standard character format) on the
Supplemental Register for “clothing for adults, namely, jackets
and sweaters, not including boys and girls sportswear” in
International Class 25.1
Registration has been finally refused under Section 2(d) of
the Trademark Act, 15 U.S.C. §1052(d), on the ground that

1 Serial No. 76692826, filed on November 22, 2004, which alleges a date
of first use anywhere and in commerce of January 1, 1994.
THIS OPINION IS
NOT A PRECEDENT
OF THE TTAB
Serial No. 76692826
2
applicant's mark, when applied to its goods, so resembles the
mark US WEAR (in standard character format) on the Principal
Register for “clothing, namely boys and girls sportswear, namely,
pants, jumpers, overalls, coveralls and woven and knit shirts and
skirts" in International Class 25,2 as to be likely to cause
confusion, or to cause mistake, or to deceive.
Applicant has appealed and briefs have been filed. We
affirm the refusal to register.
Our determination of likelihood of confusion is based on an
analysis of all of the probative facts in evidence that are
relevant to the factors set forth in In re E. I. du Pont de
Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also
In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d
1201 (Fed. Cir. 2003). In any likelihood of confusion analysis,
however, 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 (CCPA 1976).
With respect to the marks, we find that they are nearly
identical; the only difference between the two marks is the
single space between the terms US and WEAR in the registered mark
and applicant has combined the terms, USWEAR. The marks are
identical in sound. Likewise, any connotation and commercial

2 Reg. No. 2947603, issued on May 10, 2005; the word "WEAR" is
disclaimed.

Serial No. 76692826
3
impression created by the marks will be the same inasmuch as both
marks are being used on clothing apparel.
Because of the near identity of the marks, this du Pont
factor weighs heavily in favor of finding a likelihood of
confusion.
Insofar as the goods are concerned, if the marks are
identical or nearly so, as in the present case, it is only
necessary that there is a viable relation between the goods to
support a holding of likelihood of confusion. See In re Shell
Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993);
and In re Opus Wine Inc., 60 USPQ2d 1812, 1815 (TTAB 2001).
Here, there is clearly more than just a viable relationship
between applicant’s “clothing for adults, namely, jackets and
sweaters, not including boys and girls sportswear” and the cited
registrant’s “boy’s and girl’s sportswear, namely, pants,
jumpers, overalls, coveralls and woven and knit shirts and
skirts.” Applicant attempts to make hay out of the exclusionary
language in its identification of goods, i.e., that its clothing
is for adults, not boys and girls, and that registrant’s goods
are children’s sportswear. Applicant’s argument in this regard
is not persuasive. Rather, both the items in the application and
those in the cited registration fall under the general rubric of
“clothing.” Furthermore, the examining attorney has presented
evidence to show that it is not unusual for the same mark to be
registered for clothing items for both adults and children.
Serial No. 76692826
4
While these registrations are not evidence that the marks are in
use or that consumers are familiar with them, they do suggest
that clothing for adults and children may emanate from a single
source. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783
(TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470
n.6 (TTAB 1988). Thus, the registrations are probative in that
they suggest that consumers who encounter clothing for adults and
children, being sold or offered under a nearly identical mark,
are likely to perceive that they are being offered by the same
entity.
Accordingly, this du Pont factor also weighs in favor of
finding a likelihood of confusion.
As to the trade channels and classes of purchasers, it is
presumed the identified goods are offered in all channels of
trade which would be normal therefore, and that they would be
purchased by all potential buyers thereof. In re Elbaum, 211
USPQ 639, 640 (TTAB 1981). And, while applicant’s goods are
adult clothing items and the cited registration identifies
children’s sportswear, this does not necessarily mean that the
trade channels for the respective goods are different. Indeed,
clothing for children and adults is likely to be found in stores
that feature clothing or the clothing departments of larger
stores, e.g., The Gap, Filene’s, Sears, Nordstroms, K-Mart, etc.
As to the classes of purchasers, we note that the purchase of
children’s clothing is often undertaken by the parents of the
Serial No. 76692826
5
children. Thus, to the extent that many adults are parents (and
certainly most parents are adults), the classes of purchasers
overlap. Furthermore, given that nearly all of the identified
articles of clothing may appear in various price ranges, nothing
more than ordinary care would likely be utilized in purchasing
decisions.
Accordingly, the du Pont factors involving trade channels
and classes of purchasers weigh in favor of finding a likelihood
of confusion.
We have considered all arguments put forth by applicant and
the examining attorney in addition to the evidence of record. We
have no doubt and conclude that consumers familiar with
registrant’s mark US WEAR on “clothing, namely boys and girls
sportswear, namely, pants, jumpers, overalls, coveralls and woven
and knit shirts and skirts,” upon encountering applicant’s mark
USWEAR for “clothing for adults, namely, jackets and sweaters,
not including boys and girls sportswear,” are likely to believe
that the respective clothing items originate from or are
associated with or sponsored by the same entity.
Decision: The refusal under Section 2(d) is affirmed.