Warrior Lacrosse, Inc.

Trademark Trial and Appeal Board

May 2, 2005

No. 76467756 (T.T.A.B. May. 2, 2005)

Mailed: May 2, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
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In re Warrior Lacrosse, Inc.
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Serial No. 76467756
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Vincent C. Hagan of Artz & Artz, P.C. for Warrior Lacrosse, Inc.

Shari Sheffield, Trademark Examining Attorney, Law Office 110
(Chris A.F. Pedersen, Managing Attorney).
_______

Before Chapman, Holtzman and Rogers, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

Applicant, Warrior Lacrosse, Inc., has filed an application to
register the mark SUPERSTAR for goods identified (as amended) as
"protective lacrosse equipment, namely gloves."1
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

1 Serial No. 76467756, filed November 18, 2002, based on an allegation of
first use and first use in commerce in April 2002.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Ser No. 76467756
2
the mark JUNIOR SUPERSTAR ("JUNIOR" disclaimed) for the following
goods as to be likely to cause confusion:2
sporting goods, namely soccer balls, footballs, baseball bats
and balls, baseball gloves, basketballs, golf sets comprised
of golf clubs, golf balls, golf tees and a golf bag, tennis
sets comprised of a tennis racket and tennis ball, street
hockey sets comprised of hockey sticks, a hockey ball and
goal, and boxing sets comprised of a punching bag and boxing
gloves, in International Class 28.

When the refusal was made final, applicant appealed.3 Briefs
have been filed. An oral hearing was not requested.
Here, as in any likelihood of confusion analysis, we look to
the factors set forth in In re E. I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563 (CCPA 1973), giving particular attention to
the factors most relevant to the case at hand, including the
similarities of the marks and the similarities of the goods. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24 (CCPA 1976).
We turn first to the marks. When the marks are compared in
their entireties, giving appropriate weight to the features
thereof, we find that applicant's mark SUPERSTAR is similar in
sound, appearance and meaning to the cited mark JUNIOR SUPERSTAR.
The word SUPERSTAR is applicant's entire mark and is visually and

2 Registration No. 2616193; issued September 10, 2002.

3 The examining attorney also finally refused registration under Section
2(d) based on Registration No. 2144066. However, we note that the
registration was cancelled by the Office under Section 8 of the Trademark
Act on December 18, 2004. Thus, the refusal with respect to that
registration is moot.
Ser No. 76467756
3
aurally a significant part of the registered mark. Applicant
argues that the marks in their entireties are substantially
different in appearance, sound and meaning because applicant's mark
"lacks the JUNIOR term." Based on the dictionary definition made
of record by the examining attorney,4 and an additional definition
of which we take judicial notice,5 it is clear that the disclaimed
word "JUNIOR" in this context would simply be perceived as a
descriptive term referring to the smaller size of the sports
equipment or the youthful age of the user. While disclaimed and
descriptive elements in a mark cannot be ignored, the fact is that
the purchasing public is more likely to rely on the nondescriptive
portion of a mark, in this case the word "SUPERSTAR," as an
indication of source. See Hilson Research Inc. v. Society for
Human Resource Management, 27 USPQ2d 1423 (TTAB 1993).
Applicant also argues that the marks convey different
meanings, contending that JUNIOR SUPERSTAR "connotes items intended
for use by younger and/or smaller-sized individuals," while
applicant's mark SUPERSTAR "conveys a meaning of an extremely

4 The listing from The American Heritage Dictionary of the English
Language, Third Edition (1992), defines "junior" as "intended for or
including youthful persons: ...; a junior sports league."

5 Microsoft Encarta College Dictionary (2001) defines "junior" as "smaller
than the standard or expected size" and "a young person, especially
somebody younger than a teenager."

Ser No. 76467756
4
prominent and skilled athlete, regardless of his age or size."6
(Resp. to Office Action, October 29, 2003). We do not disagree
with the meanings ascribed to the marks by applicant but we
disagree that the difference is significant or that it is
sufficient to distinguish the marks as a whole. We find instead
that the additional word "JUNIOR" in registrant's mark does not
significantly change the meaning or commercial impression created
by SUPERSTAR alone.
We also point out that JUNIOR SUPERSTAR, as a suggestive mark,
while perhaps not entitled to the broadest scope of protection,
would at least be entitled to protection against the registration
of a very similar mark for closely related goods. See, e.g., King
Candy Co. v. Eunice King's Kitchen, Inc., 496 F.2d 1400, 182 USPQ
108, 109 (CCPA 1974) (likelihood of confusion is to be avoided as
much between weak marks as between strong marks).
Thus, we turn to a consideration of the goods. Applicant
argues that although the goods can be broadly characterized as
sporting goods, they are not so related that purchasers would
mistakenly believe they come from the same source. Applicant
further argues that lacrosse equipment is sold in lacrosse
specialty stores and, moreover, to the extent such equipment is

6 The examining attorney has submitted a dictionary definition of
"superstar" as "[a] widely acclaimed star, as in movies or sports, who has
great popular appeal." The American Heritage Dictionary of the English
Language, Third Edition (1992).
Ser No. 76467756
5
sold in general retail stores, it would appear in separate sections
dedicated to the game of lacrosse. Applicant also contends that
marketing for lacrosse equipment is directed to lacrosse players
whereas marketing for other "non-lacrosse" sports equipment is
directed to athletes involved in those other sports. Further,
according to applicant, lacrosse players and purchasers of lacrosse
equipment are relatively sophisticated and "a reasonable person can
understand the significant differences between the rules, the
equipment, and all other aspects of lacrosse and other sports."
It is true that there are specific differences in the
respective goods. However, the question is not whether purchasers
can differentiate the goods themselves but rather whether
purchasers are likely to confuse the source of the goods. See
Helene Curtis Industries Inc. v. Suave Shoe Corp., 13 USPQ2d 1618
(TTAB 1989). Thus, it is not necessary that the goods of the
applicant and registrant be similar or even competitive to support
a finding of likelihood of confusion. It is sufficient if the
respective goods are related in some manner and/or that the
conditions surrounding their marketing are such that they would be
encountered by the same persons under circumstances that could,
because of the similarity of the marks used thereon, give rise to
the mistaken belief that they emanate from or are associated with,
the same source. See In re Albert Trostel & Sons Co., 29 USPQ2d
1783 (TTAB 1993).
Ser No. 76467756
6
Registrant's goods include a line of baseball equipment
comprised of bats, balls and gloves, and equipment for other
conventional field sports such as football and soccer. Applicant's
goods are protective gloves to be worn when engaging in another
conventional field sport, lacrosse. The respective goods are
related in the sense that applicant's lacrosse gloves would be
perceived as part of yet another line of registrant's field sports
equipment. We also note that the evidence made of record by the
examining attorney shows that at least one company has registered
the same mark for both lacrosse equipment, including lacrosse
gloves, on the one hand, and equipment for baseball, football and
soccer on the other, suggesting that, despite the differences in
the identified goods, they are of a type which may emanate from a
single source. See, e.g., In re Albert Trostel & Sons Co., supra
at 1785-1786; and In re Mucky Duck Mustard Co., 6 USPQ2d 1467 (TTAB
1988).
Moreover, the respective goods are marketed through the same
channels of trade to the same consumers. In cases where an
application and registration do not contain limitations describing
a particular channel of trade or class of customer, the goods are
assumed to travel in all normal channels of trade to all usual
purchasers. See Canadian Imperial Bank of Commerce v. Wells Fargo
Bank, N.A., 811 F.2d 1490, 1492, 1 USPQ2d 1813, 1814-15 (Fed. Cir.
1987). It can be presumed that normal channels of trade for
Ser No. 76467756
7
lacrosse equipment, like other consumer sporting goods equipment,
would include sporting goods stores and sporting goods departments
of other stores or other similar retail outlets. In this regard,
the Internet printouts submitted by the examining attorney show
that equipment for a variety of sports activities, including
lacrosse, is sold on the same sporting goods websites. See, for
example, www.thesportsauthority.com; www.dickssportinggoods.com;
and www.anacondasports.com. We also note that these websites offer
certain sports equipment, such as baseball catcher's masks and
lacrosse gloves, in both adult and "junior" lines and sizes.
Furthermore, the purchasers for applicant's and registrant's
sporting goods would be the same. They both may be purchased not
only by "athletes," as applicant contends, but by ordinary
consumers, with the youth or "junior" lines or sizes purchased by
the adult consumers for their children. The fact that equipment
for a particular sports activity may be found in different parts of
a sporting goods store, or on different pages of a sporting goods
website, is not an important consideration inasmuch as the
equipment for different sports might not even be purchased at the
same time.7 The typical purchaser for these goods, for example, a
parent who had previously purchased registrant’s JUNIOR SUPERSTAR

7 In any event, it is reasonable to assume that equipment for more than
one type of sport may indeed be sold in the same or adjacent aisles of a
sporting goods store especially in a smaller retail setting such as a
sporting goods section of a department store.

Ser No. 76467756
8
baseball glove for his child, upon encountering applicant’s
lacrosse gloves under the very similar SUPERSTAR mark for himself
or his child, regardless of where or even when he found it in the
store or on the website, is likely to assume that registrant is now
offering a line of lacrosse equipment, or that the goods are
otherwise associated with or sponsored by registrant.
Finally, we have no evidence that purchasers of lacrosse
gloves would be sophisticated or discriminating or that they would
exercise anything other than ordinary care in selecting such
products.
In view of the foregoing, we find that a likelihood of
confusion exists between the marks SUPERSTAR and JUNIOR SUPERSTAR
for related goods.
To the extent that there is any doubt on the issue of
likelihood of confusion, it is settled that such doubt must be
resolved in favor of the prior registrant. In re Shell Oil Co.,
992 F.2d 1204, 26 USPQ2d 1687 (Fed. Cir. 1993).
Decision: The refusal to register is affirmed.