Zorlu Holding Anonim Sirketi

Trademark Trial and Appeal Board

Apr 30, 2009

No. 79034010 (T.T.A.B. Apr. 30, 2009)

For

Mailed:
April 30, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Zorlu Holding Anonim Sirketi
________

Serial No. 79034010
_______

Anthony D. Logan of Venable, Campillo, Logan & Meaney PC
for Zorlu Holding Anonim Sirketi.

Daniel Brody, Trademark Examining Attorney, Law Office 117
(Loretta C. Beck, Managing Attorney).
_______

Before Quinn, Zervas and Taylor, Administrative Trademark
Judges.

Opinion by Zervas, Administrative Trademark Judge:
On January 24, 2007, Zorlu Holding Anonim Sirketi
applied to register the trademark

on the Principal Register for various goods including the
following goods:
THIS OPINION IS NOT
A PRECEDENT
OF THE T.T.A.B.
Serial No. 79034010
2
“Fabrics for textile use namely, polyester
fabrics or fabrics composed of polyester and
other fibers for textile use not for use as
linings for gloves; non-woven textile fabrics not
for use as a component of incontinence pads and
not for use as linings for gloves; fiberglass
fabrics for textile use not for use as linings
for gloves; waterproof fabric impervious to gas
and water for manufacturing clothing, furniture
and automobile upholstery, and luggage not for
use as linings for gloves; fabrics of imitation
animal skins not for use as linings for gloves;
textile used as lining for clothing not for use
as linings for gloves; buckram not for use as
linings for gloves; filtering materials of
textile not for use as linings for gloves,
namely, mesh-woven fabrics not for use as linings
for gloves;” in International Class 24;1 and

“Clothing, namely, dresses, shorts, shirts,
jeans, pants, jackets, sports shirts, sports
coats, t-shirts, sweaters, skirts, lingerie,
suits, beachwear, sleepwear; clothing for sports,
namely, athletic uniforms, underwear, stockings,
footwear, shoes, boots, half-boots, sandals,
slippers, lace boots and their parts, sports
shoes and studs for sports shoes; shoe parts,
namely, inner soles and heelpieces, heels, leg of
a boot or stockings, vamps, and footwear uppers;
headwear; caps; hats; berets; clothing for
babies, namely, shirts and pants; layettes; nylon
underpants; cloth bibs; ties, neckties; neck
scarves; wimples; shawls; scarves; swimwear,
namely, sarongs; collars for dresses; bandanas;
maniples; muffs; arm and head bands; wristbands;
belts; suspenders; garters” in International
Class 25.2

1 There are additional goods recited in International Class 24
and the examining attorney’s refusal of registration, discussed
below, is not directed to such additional International Class 24
goods. Also, the application recites goods in International
Classes 20, 22, 23, 26 and 27 which have not been refused
registration.
2 The examining attorney has refused registration of all of the
recited International Class 25 goods.
Serial No. 79034010
3
The application was filed as an extension of protection of
a foreign registration under the provisions of Section
66(a) of the Trademark Act, 15 U.S.C. § 1141f. Applicant
has disclaimed the term DRY; and the following two
statements are in the application record: (i) “the upper
wavy line appears in light blue, the lower wavy line
appears in blue, and the wording ‘DRY TOUCH’ appears in
black,” and (ii) “the color(s) blue, light blue and black
is/are claimed as a feature of the mark.”
The examining attorney refused registration of the
application for the International Class 24 and 25 goods
listed above pursuant to Section 2(d) of the Trademark Act,
15 U.S.C. 1052(d), on the ground that applicant’s mark so
resembles the mark DRI-TOUCH (in typed form) of
Registration No. 1604734 (issued on July 3, 1990, renewed),
for “gloves and linings for gloves,” in International Class
25, that, as used on applicant’s identified goods,
applicant's mark is likely to cause confusion or mistake or
to deceive.
Applicant has appealed the final refusal, and both
applicant and the examining attorney have filed briefs. We
affirm the refusal to register.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
Serial No. 79034010
4
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, although not exclusive, 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). See also, In re Dixie Restaurants Inc., 105
F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). In this case,
we consider only those factors discussed by the examining
attorney and applicant in their briefs.
We first turn to the marks. Our focus is on whether
the marks are similar in sound, appearance, meaning, and
commercial impression. Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689 (Fed. Cir. 2005). We do not consider whether
the marks can be distinguished when subjected to a side-by-
side comparison, but rather whether the marks are
sufficiently similar that confusion as to the source of the
goods offered under the respective marks is likely to
result. The focus is on the recollection of the average
purchaser, who normally retains a general rather than a
Serial No. 79034010
5
specific impression of trademarks. See Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Applicant’s mark is comprised of the wording DRY TOUCH
and a design element positioned above the wording. It is
well established that although marks must be considered in
their entireties, there is nothing improper, under
appropriate circumstances, to give more or less weight to a
particular portion of a mark. See In re National Data
Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985). The
design element, which is in color and which resembles two
arrows directed in opposite directions, is not particularly
distinctive and certainly would not be articulated in
viewing the mark. Because it is the wording which would be
most likely to be remembered by consumers and would be used
in calling for the goods, and the design is not
particularly distinctive, we accord DRY TOUCH greater
weight than the design element in applicant's mark. See In
re Appetito Provisions Co., 3 USPQ2d 1553 (TTAB 1987).
Registrant’s mark is DRI-TOUCH, which is phonetically
identical to “dry touch,” the wording in applicant's mark.
In fact, DRY TOUCH only differs from registrant’s mark in
that applicant has substituted a letter “y” for the letter
Serial No. 79034010
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“i” in DRI and deleted the hyphen.3 (Despite applicant's
contentions to the contrary, the hyphen in registrant’s
mark has no source originating significance.) Because of
the near identity in wording, applicant's mark is similar
visually to registrant’s mark, especially because
registrant’s mark, as a typed mark, is accorded a range of
lettering styles which includes the identical lettering
style of applicant's mark. See Phillips Petroleum Co. v.
C. J. Webb, Inc. 442 F.2d 1376, 170 USPQ 35 (CCPA 1971) (a
mark registered in typed form is not limited to being
depicted in any particular manner of display).4 Further,
the marks are identical in meaning; both convey that the
goods are dry when touched. Both marks are similar in
commercial impression too in view of their identical sound
and meaning and because applicant’s design element is a
simple one, which is insufficient to distinguish the marks.

3 In so considering the mark, we are not dissecting the mark as
applicant has complained the examining attorney has done in
similarly analyzing the marks. Rather, we consider the
similarities and differences of the marks, in the context of the
entire marks.
4 We are not persuaded by applicant's argument that “the
appearance, sound, sight, and commercial impression of
Registrant’s mark derives significant contribution from the word
component ‘I-’ … of the mark as any design or printing of the
mark must [use] these terms.” Brief at p. 11. The letter “i” in
applicant's mark would be pronounced identically to the letter
“y” in “dry”; and “dri” would be recognized immediately as a
slight misspelling of “dry.” Also, it is immaterial what “any
design or printing” of the marks entail; what is material is the
similarity of the marks in sound, appearance, meaning and
commercial impression. See Palm Bay, supra.
Serial No. 79034010
7
Thus, upon considering the two marks in their entireties,
we find them to be similar in sound, appearance, meaning
and commercial impression, and resolve the du Pont factor
regarding the similarity of the marks against applicant.
Applicant has argued that “the terms ‘Dry,’ ‘Dri’ and
‘Touch’ are in use by numerous registrants and therefore
the dilution of these words make them weak.” Brief at pp.
13, 14 and 19. In support of its argument, applicant
relies on (i) a listing of search results for applications
and registrations on the Office’s TARR database, and (ii)
printouts of registrations for marks with “dry,” “dri” or
“touch” in them.
Applicant's evidence does not persuade us that
registrant’s mark is weak for many reasons. First, the
listing of applications and registrations has little
probative value because the listing does not show the goods
or services identified in the applications and
registrations. Second, the applications are only proof
that an application was filed with the Office. In re
Phillips-Van Heusen Corp., 63 USPQ2d 1047, 1049 n.4 (TTAB
2002) (“While applicant also submitted a copy of a third-
party application …, such has no probative value other than
as evidence that the application was filed”). Third, some
registrations were filed under the provisions of Section 44
Serial No. 79034010
8
of the Trademark Act. Because registrant was not required
to assert that it had used the mark in interstate commerce,
such registrations have no probative value. Fourth, in
terms of demonstrating the strength of a mark, absent
evidence of actual use, third-party use-based registrations
have little probative value because they are not evidence
that the marks are in use on a commercial scale or that the
public has become familiar with them. See Smith Bros. Mfg.
Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462 (CCPA
1973) (the purchasing public is not aware of registrations
reposing in the U.S. Patent and Trademark Office). As the
Board stated in In re Hub Distributing, Inc., 218 USPQ at
284, 285 (TTAB 1983):
[I]t would be sheer speculation to draw
any inferences about which, if any of
the marks subject of the third[-]party
registrations are still in use.
Because of this doubt, third[-]party
registration evidence proves nothing
about the impact of the third-party
marks on purchasers in terms of
dilution of the mark in question or
conditioning of the purchasers as their
weakness in distinguishing source.

Fifth, some of the printouts (of registrations) concern
goods unrelated to registrant’s goods. See, e.g.,
Registration No. 2163740 for TOUCH TEXTILES for “textiles
and fabrics for furniture use”; Registration No. 0191130
for the mark DRY-TEX for “Turkish towels”; Registration No.
Serial No. 79034010
9
2355966 for the mark DURATOUCH for “imitation leather
upholstery fabric”; Registration No. 1245338 for ROYAL
TOUCH for bathmats, towels and wash cloths; and
Registration No. 0841826 for the mark DRI-COAT for “coated
cotton fabric in the piece used in the shoe manufacturing
trade as backing cloth or reinforcing cloth.” Sixth, some
of the third-party marks have different commercial
impressions than that of registrant's mark, e.g.,
Registration No. 2396098 for TOUCH’EM ALL; Registration No.
2532783 for TOUCH OF PARADISE; and Registration No. 3260018
for EURO TOUCH (stylized). Seventh, even if the evidence
shows that the individual components DRI- and TOUCH have
suggestive significance with respect to the goods,5 the
evidence does not establish that the combination DRI-TOUCH
is so weak as to permit the registration of applicant's
mark.
Further, in arguing that DRI-TOUCH is weak, applicant
points to the examining attorney’s initial refusal of the
application in view of the DRI-TOUCH registration and other

5 Third-party registrations can be used in the manner of
dictionary definitions, to show by the adoption by many parties
that a term has a particular significance in an industry. See
Mead Johnson & Company v. Peter Eckes, 195 USPQ 187 (TTAB 1977).
Applicant has not indicated what the significance is, if any, of
DRY (or DRI) and TOUCH in these registrations in the relevant
industry. We accord the combination of DRY and TOUCH as
suggesting, inter alia, that the goods feel dry even when exposed
to the elements.
Serial No. 79034010
10
DRY TOUCH or DRY-TOUCH registrations, namely, Registration
Nos. 1204598 (for “diaper liners sold as a component of
disposable diapers”), 2013865 (for “nonwoven fabric as a
component of feminine protection pads”), 2501798 (for
“nonwoven fabric as a component of incontinence pads and of
incontinence garments”) and 2792673 (for “absorbent granule
material as a component of incontinence pads”), each which
were registered to Kimberly-Clark Corporation (hereinafter,
collectively, “Kimberly-Clark registrations”). The
Kimberly-Clark registrations have limited probative value.
First, they were all registered to the same registrant,
and, even when considered in conjunction with the cited
registration, do not evidence registration by numerous
third-parties. Second, as noted above, third-party use-
based registrations are not evidence that the marks are in
use on a commercial scale or that the public has become
familiar with them. Third, at least Registration Nos.
1204598, 2013865, 2501798 and 2792673 recite goods
dissimilar to registrant’s goods. See Key Chemicals, Inc.
v. Kelite Chemicals Corp., 464 F.2d 1040, 175 USPQ 99 (CCPA
1972).
We now address one of applicant's arguments involving
Registration No. 1204598 for DRY TOUCH, which is the
subject of most of applicant's reply brief. Applicant's
Serial No. 79034010
11
argument stems from the fact that the examining attorney
cited Registration No. 1204598 for “diaper liners sold as a
component of disposable diapers” in refusing registration
of the involved application in his initial Office action,
but later withdrew his refusal based on this registration.
Then, when applicant relied on Registration No. 1204598 in
contending that registrant’s mark is weak, the examining
attorney distinguished Registration No. 1204598 on the
basis that the registration “is not for clothing.” Final
Office action at p. 4. Applicant challenged the examining
attorney’s contention that the goods are dissimilar from
those of the cited registration, relying on Registration
No. 34627806 for the mark SILVER ARMOR which recites “infant
cloth diapers” and gloves and noting that the examining
attorney has relied on third-party registrations to
demonstrate that the goods of the cited registration are
related to applicant’s goods. See discussion, infra.
There are two problems with applicant's argument.
First, the SILVER ARMOR registration does not recite the
same goods as Registration No. 1204598. The SILVER ARMOR
registration recites “infant cloth diapers,” and

6 The examining attorney made the SILVER ARMOR registration of
record in seeking to show a relationship between applicant's
goods and those goods of one of the Kimberly-Clark registrations,
which the examining attorney cited as a Section 2(d) bar to
Serial No. 79034010
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Registration No. 1204598 recites “diaper liners sold as a
component of disposable diapers.” These are not the same
goods. Second, even if we accept that “infant cloth
diapers” are related to gloves and glove liners in the
subject application, this single third-party registration,
which is not evidence of third-party use, does not
establish that the DRI-TOUCH mark is so weak that
applicant's mark should be registered.
Applicant has introduced other evidence in connection
with its effort to establish that the cited registration is
weak. None of this evidence persuades us that registrant’s
mark is weak. For example, the many gordini.com webpages
which offer gloves with an ULTRA DRI-MAX insert at best
evidences use of only one mark with DRI; the Google search
results do not necessarily reflect active websites, and do
not all concern gloves or glove liners (the sloblu.com
entry refers to “chrome-plated finish or unplated finish
dipped in Dri-Touch protectant”); the Material Safety Data
Sheet is not evidence of use of the mark; and the DRI-TOUCH
product identified in the Material Safety Data Sheet
appears to pertain to an unrelated “light tan liquid” with
a “mild odor.”

registration for one of the International Classes not at issue in
this appeal.
Serial No. 79034010
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In view of the foregoing, even when we consider
applicant's evidence cumulatively, we are not persuaded
that registrant’s mark is so weak as to allow the
registration of applicant's mark.
We next consider the similarity or dissimilarity of
the goods. It is not necessary that these goods be
identical or even competitive to support a finding of
likelihood of confusion. Rather, it is sufficient that the
goods are related in some manner, or that the circumstances
surrounding their marketing are such, that they would be
encountered by the same persons in situations that would
give rise, because of the marks, to a mistaken belief that
they originate from the same source or that there is an
association or connection between the sources of the goods.
See In re Opus One, Inc., 60 USPQ2d 1812 (TTAB 2001); In re
Melville Corp., 18 USPQ2d 1386 (TTAB 1991).
The examining attorney has made of record webpages
offering gloves and one or more of applicant's
International Class 25 goods for sale under the same mark,
some of which are offered on the same webpage. He has also
made of record third-party use-based registrations
identifying gloves and (i) one or more of the International
Class 25 clothing items identified in the application, or,
(ii) one or more of the fabrics identified in applicant's
Serial No. 79034010
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International Class 24 identification of goods. Third-
party registrations which individually cover a number of
different items which are based on use in commerce may have
some probative value to the extent that they serve to
suggest that the listed goods are of a type which may
emanate from the same source. In re Albert Trostel & Sons
Co., 29 USPQ2d 1783 (TTAB 1993); In re Mucky Duck Mustard
Co. Inc., 6 USPQ2d 1467 (TTAB 1988). Thus, with his
evidence, we find that the examining attorney has
established that the goods are related because the
circumstances surrounding the marketing of applicant's and
registrant’s goods are such, that they would be encountered
by the same persons in situations that would give rise,
because of the marks, to a mistaken belief that they
originate from the same source or that there is an
association or connection between the sources of the goods.
Next, we consider the similarity or dissimilarity of
the trade channels and classes of purchasers. Applicant,
at p. 19 of its brief, argues that registrant’s goods are
sold to specialty sports stores. However, because the
goods in registrant’s identification of goods are not
restricted to sales in specialty sports stores, we do not
consider registrant’s channels of trade to be limited as
argued by applicant. The question of likelihood of
Serial No. 79034010
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confusion must be determined based on an analysis of the
marks as applied to the goods and/or services recited in
applicant’s application vis-à-vis the goods and/or services
recited in registrant’s registration, rather than what the
evidence shows the goods and/or services to be. See
Octocom Systems, Inc. v. Houston Computers Services Inc.,
918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The
authority is legion that the question of registrability of
an applicant’s mark must be decided on the basis of the
identification of goods set forth in the application
regardless of what the record may reveal as to the
particular nature of an applicant's goods ….”).
Turning first to the trade channels of the
International Class 25 clothing goods, applicant's and
registrant’s goods, which are everyday clothing items,
would be offered to the same consumers (members of the
general public) in the same retail outlets, such as
department stores, clothing stores and sports stores, and
through the internet. See the webpages submitted by the
examining attorney from retail clothing and sports outlets
such as Patagonia, Timberland, Burberry, Eddie Bauer and
Sports Authority. Also, the identifications of goods do
not include any limitations or restrictions as to types of
purchasers or channels of trade; we must therefore presume
Serial No. 79034010
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that applicant sells its clothing items in all channels of
trade that would be normal for such goods. See In re
Elbaum, 211 USPQ 639 (TTAB 1981). Thus, with regard to the
International Class 25 goods, we find that the trade
channels overlap and that the purchasers are identical.
As for applicant's International Class 24 fabrics, the
examining attorney points to webpages in the record such as
gortex.com, damartusa.com and solutions.3m.com that offer
gloves for sale and discuss the material from which gloves
are made. These webpages do not offer fabric alone for
sale and the fabrics discussed appear to have specialized
characteristics that make them particularly suited for
goods such as gloves. The examining attorney and applicant
have not pointed to any other evidence in the record which
would assist us in identifying the trade channels or
purchasers of applicant's International Class 24 goods.
Additionally, the limitation in applicant's identification
of goods that its textiles are “not for use as linings for
gloves” is of no consequence; some of the recited fabric
goods, such as the “waterproof fabric impervious to gas and
water for manufacturing clothing,” could be used as fabric
for registrant’s gloves. Also, we see no reason why
members of the general public who sew their own clothes
(and also purchase gloves) would not purchase applicant's
Serial No. 79034010
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fabrics such as “fabrics of imitation animal skins not for
use as linings for gloves.” Therefore, we find that as to
the International Class 24 goods, the du Pont factor
regarding the similarity of purchasers favors finding a
likelihood of confusion but that the du Pont factor
regarding trade channels is at best neutral, due to a lack
of evidence.
Turning now to the du Pont factor regarding the
conditions under which sales are made, as noted above,
applicant maintains that registrant’s goods are sold in
specialty clothing stores. Applicant also maintains that
consumers in these sporting goods stores are generally more
sophisticated buyers. Because registrant’s identification
of goods is not restricted to sales in sporting goods
stores, and, in fact, may include non-sporting low-cost
items such as children’s gloves, applicant's contention
regarding the sophistication of purchasers is not
persuasive. Also, applicant has not provided evidence that
those who purchase products from sporting goods stores are
“more sophisticated,” and the examining attorney has not
submitted any evidence bearing on this issue. We thus
consider the factor regarding the conditions under which
sales are made to be neutral in our analysis.
Serial No. 79034010
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When we consider the record and the relevant
likelihood of confusion factors, and all of applicant's
arguments relating thereto, including those arguments not
specifically addressed herein, we conclude that, when
potential purchasers of registrant’s “gloves and linings
for gloves” encounter applicant's various International
Class 24 and 25 goods, they are likely to believe that the
sources of these goods are the same or in some way related
or associated. As a result, there is a likelihood of
confusion.
DECISION: The refusal to register the mark under
Section 2(d) of the Trademark Act is affirmed as to both
the International Class 24 and 25 goods which are the
subject of this appeal.