Offc Action Outgoing

United States Patent and Trademark Office (USPTO)

 

 

 

EXAMINING ATTORNEY’S APPEAL BRIEF

 

 

The applicant has appealed the examining attorney’s refusal to register “WERK” and design for “Athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms” in International Class 25 and “Health club services, namely, providing instruction and equipment in the field of physical exercise” in International Class 41.  Registration was refused because of a likelihood of confusion with the marks in U.S. Registration Nos. 5,419,326 and 5,010,515. Trademark Act Section 2(d), 15 U.S.C. § 1052(d).

FACTS

 

On October 16, 2018, the applicant filed an application to register “WERK” and design for “Athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms” in International Class 25 and “Health club services, namely, providing instruction and equipment in the field of physical exercise” in International Class 41.  In an Office action dated February 1, 2019, the examining attorney refused registration based upon Section 2(d) of the Trademark Act, citing two registrations, specifically (1) “WERK CLUB” in standard character form for “clothing, namely, t-shirts, bottoms, tops, jackets, caps, hats, and wrist bands” (U.S. Registration No. 5,419,326); and (2) “WERK DANCE FITNESS” and design for “dance instruction; education services, namely, providing classes and instruction in the field of dance” (U.S. Registration No. 5,010,515).  The cited registrations are owned by two entities:  the first is owned by Karlton Grant and the second is owned by Kenya Day.  On August 1, 2019, the applicant filed a response and argued against the Section 2(d) refusal. On October 4, 2019, the examining attorney issued a final refusal on the issue of likelihood of confusion.  On April 6, 2020, the applicant filed a brief appealing that decision.  

 

ISSUE

The sole issue on appeal is whether a likelihood of confusion exists between the applied-for mark, “WERK” and design and U.S. Registration Nos. 5,419,326 and 5,010,515, “WERK CLUB” in standard character form and “WERK DANCE FITNESS” and design.

 

ARGUMENT

APPLICANT’S MARK IS LIKELY TO CAUSE CONFUSION WITH THE MARKS IN THE CITED REGISTRATIONS

Trademark Act Section 2(d) bars registration of an applied-for mark that is so similar to a registered mark that it is likely consumers would be confused, mistaken, or deceived as to the commercial source of the goods and/or services of the parties.  See 15 U.S.C. §1052(d).  Likelihood of confusion is determined on a case-by-case basis by applying the factors set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973) (called the “du Pont factors”).  In re i.am.symbolic, llc, 866 F.3d 1315, 1322, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017).  Any evidence of record related to those factors need be considered; however, “not all of the DuPont factors are relevant or of similar weight in every case.”  In re Guild Mortg. Co., 912 F.3d 1376, 1379, 129 USPQ2d 1160, 1162 (Fed. Cir. 2019) (quoting In re Dixie Rests., Inc., 105 F.3d 1405, 1406, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997)).

 

Although not all du Pont factors may be relevant, there are generally two key considerations in any likelihood of confusion analysis:  (1) the similarities between the compared marks and (2) the relatedness of the compared goods and/or services.  See In re i.am.symbolic, llc, 866 F.3d at 1322, 123 USPQ2d at 1747 (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)); Federated Foods, Inc. v. Fort Howard Paper Co.,544 F.2d 1098, 1103, 192 USPQ 24, 29 (C.C.P.A. 1976) (“The fundamental inquiry mandated by [Section] 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods [or services] and differences in the marks.”); TMEP §1207.01. 

 

Applicant’s Mark is so Similar in Sound, Appearance, and Meaning to the Cited Marks that there is a Likelihood of Confusion

Marks are compared in their entireties for similarities in appearance, sound, connotation, and commercial impression.  Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 1321, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014) (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1371, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)); TMEP §1207.01(b)-(b)(v).  “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.”  In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d per curiam, 777 F. App’x 516, 2019 BL 343921 (Fed. Cir. 2019); TMEP §1207.01(b).

 

Although marks are compared in their entireties, one feature of a mark may be more significant or dominant in creating a commercial impression.  See In re Detroit Athletic Co., 903 F.3d 1297, 1305, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (citing In re Dixie Rests., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997)); TMEP §1207.01(b)(viii), (c)(ii).  Greater weight is often given to this dominant feature when determining whether marks are confusingly similar.  See In re Detroit Athletic Co., 903 F.3d at 1305, 128 USPQ2d at 1050 (citing In re Dixie Rests., 105 F.3d at 1407, 41 USPQ2d at 1533-34).

 

For example, consumers are generally more inclined to focus on the first word, prefix, or syllable in any trademark or service mark.  See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1372, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (finding similarity between VEUVE ROYALE and two VEUVE CLICQUOT marks in part because “VEUVE . . . remains a ‘prominent feature’ as the first word in the mark and the first word to appear on the label”); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 876, 23 USPQ2d 1698, 1700 (Fed Cir. 1992) (finding similarity between CENTURY 21 and CENTURY LIFE OF AMERICA in part because “consumers must first notice th[e] identical lead word”); see also In re Detroit Athletic Co., 903 F.3d 1297, 1303, 128 USPQ2d 1047, 1049 (Fed. Cir. 2018) (finding “the identity of the marks’ two initial words is particularly significant because consumers typically notice those words first”).

 

Furthermore, matter that is descriptive of or generic for a party’s goods and/or services is typically less significant or less dominant in relation to other wording in a mark.  See Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., 115 USPQ2d 1816, 1824-25 (TTAB 2015) (citing In re Chatam Int’l Inc., 380 F.3d 1340, 1342-43, 71 USPQ2d 1944, 1946 (Fed. Cir. 2004)).

 

Additionally, when evaluating a composite mark consisting of words and a design, the word portion is normally accorded greater weight because it is likely to make a greater impression upon purchasers, be remembered by them, and be used by them to refer to or request the goods and/or services.  In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018) (citing In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)); TMEP §1207.01(c)(ii).  Thus, although marks must be compared in their entireties, the word portion is often considered the dominant feature and is accorded greater weight in determining whether marks are confusingly similar, even where the word portion has been disclaimed.  In re Viterra Inc., 671 F.3d at 1366-67, 101 USPQ2d at 1911 (citing Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 1570-71, 218 USPQ2d 390, 395 (Fed. Cir. 1983)).

 

The Applicant’s Mark is Confusingly Similar to the Cited Mark “WERK CLUB” (U.S. Registration No. 5,419,326)

The applicant’s mark is so similar in sound, appearance, and meaning to the mark in U.S. Registration No. 5,419,326 that there is a likelihood of confusion.  The applicant’s mark, “WERK” (with a design of three horizontal bars representing the letter “E”) is highly similar to the registrant’s mark “WERK CLUB.”  The wording “WERK” in both marks contains the identical novel or intentional misspelling of the word “WORK.”  The wording “WERK” is dominant because it is the first word in the cited mark.  As noted above, consumers are generally inclined to focus on the first word, prefix, or syllable in any trademark or service mark.  Although the registered mark contains the additional wording “CLUB,” the applicant’s mark is likely to appear to prospective purchasers as a shortened form of registrant’s mark.  See In re Mighty Leaf Tea, 601 F.3d 1342, 1348, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (quoting United States Shoe Corp., 229 USPQ 707, 709 (TTAB 1985)).  Thus, merely omitting some of the wording from a registered mark may not overcome a likelihood of confusion.  See In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257; In re Optica Int’l, 196 USPQ 775, 778 (TTAB 1977); TMEP §1207.01(b)(ii)-(iii).  In this case, applicant’s mark does not create a distinct commercial impression from the registered mark because it contains some of the wording in the registered mark and does not add any wording that would distinguish it from that mark.

 

The applicant asserts the marks are dissimilar because of visual and phonetic discrepancies.  (Applicant’s brief at pages 4-5).  However, the applicant’s argument is unpersuasive because when comparing marks, “[t]he proper test is not a side-by-side comparison of the marks, but instead whether the marks are sufficiently similar in terms of their commercial impression such that [consumers] who encounter the marks would be likely to assume a connection between the parties.”  Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1373, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)); TMEP §1207.01(b).  The proper focus is on the recollection of the average purchaser, who retains a general rather than specific impression of trademarks.  In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (citing In re St. Helena Hosp., 774 F.3d 747, 750-51, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014); Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 1007, 169 USPQ 39, 40 (C.C.P.A. 1971)), aff’d per curiam, 777 F. App’x 516, 2019 BL 343921 (Fed. Cir. 2019); TMEP §1207.01(b). 

 

In addition, the design element in the applicant’s mark, which comprises stylized lettering with a design of three horizontal bars representing the letter “E”, does not overcome the significance of the wording “WERK” in the mark.  As noted, in a composite mark comprised of both wording and a design, the word portion is more likely to be impressed upon a purchaser’s memory.  Here, the word “WERK”, is more likely than the design to be impressed upon a purchaser’s memory and to be used when requesting the goods and services. 

 

 

The Applicant’s Mark is Confusingly Similar to the Cited Mark “WERK DANCE FITNESS” (U.S. Registration No. 5,010,515)

The applicant’s mark is also likely to cause confusion with the mark in U.S. Registration No. 5,010,515.  The applicant’s mark “WERK” and design, is highly similar to the registrant’s mark “WERK DANCE FITNESS” and design.  The wording “WERK” in both marks contains the identical novel or intentional misspelling of the word “WORK.”  The wording “WERK” is dominant because it is the first word in cited mark.  Again, consumers are generally inclined to focus on the first word, prefix, or syllable in any trademark or service mark. 

 

Although the wording “DANCE FITNESS” in the registered mark cannot be ignored, it is descriptive in relation to the services at issue, as evidenced by the disclaimer of the wording in the registration.  Although marks are compared in their entireties, one feature of a mark may be more significant or dominant in creating a commercial impression.  See In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); In re Nat’l Data Corp., 753 F.2d 1056, 1058, 224 USPQ 749, 751 (Fed. Cir. 1985); TMEP §1207.01(b)(viii), (c)(ii).  Disclaimed matter that is descriptive of or generic for a party’s goods and/or services is typically less significant or less dominant when comparing marks.  In re Detroit Athletic Co., 903 F.3d 1297, 1305, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (citing In re Dixie Rests., Inc., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997)); TMEP §1207.01(b)(viii), (c)(ii).

 

In addition, the design elements in the applicant’s mark and the registered mark, do not overcome the significance of the wording “WERK” in the mark.  As noted, in a composite mark comprised of both wording and a design, the word portion is more likely to be impressed upon a purchaser’s memory.  Here, the first word “WERK”, is more likely than the design to be impressed upon a purchaser’s memory and to be used when requesting the goods and services. 

 

As stated previously, when comparing marks, “[t]he proper test is not a side-by-side comparison of the marks, but instead whether the marks are sufficiently similar in terms of their commercial impression such that [consumers] who encounter the marks would be likely to assume a connection between the parties.”  Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1373, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)); TMEP §1207.01(b).  The proper focus is on the recollection of the average purchaser, who retains a general rather than specific impression of trademarks.  In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (citing In re St. Helena Hosp., 774 F.3d 747, 750-51, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014); Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 1007, 169 USPQ 39, 40 (C.C.P.A. 1971)), aff’d per curiam, 777 F. App’x 516, 2019 BL 343921 (Fed. Cir. 2019); TMEP §1207.01(b). 

 

The Applicant’s Goods and Services are so Closely Related to the Goods and Services in the Cited Registrations that Confusion is Likely

 

In the second part of a likelihood of confusion analysis, the goods and/or services are compared to determine whether they are similar, commercially related, or travel in the same trade channels.  See Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1369-71, 101 USPQ2d 1713, 1722-23 (Fed. Cir. 2012); Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1165, 64 USPQ2d 1375, 1381 (Fed. Cir. 2002); TMEP §§1207.01, 1207.01(a)(vi).

 

The compared goods and/or services need not be identical or even competitive to find a likelihood of confusion.  See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 1086, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 1329, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000); TMEP §1207.01(a)(i).  They need only be “related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that [the goods and/or services] emanate from the same source.”  Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1369, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)); TMEP §1207.01(a)(i).

 

The applicant’s goods and services are identified as “Athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms” in International Class 25 and “Health club services, namely, providing instruction and equipment in the field of physical exercise” in International Class 41.  The goods in Registration No. 5,419,326 are identified as “clothing, namely, t-shirts, bottoms, tops, jackets, caps, hats, and wrist bands” in International Class 25.  The services in Registration No. 5,010,515 are identified as “dance instruction; education services, namely, providing classes and instruction in the field of dance.”

 

The Applicant’s Goods in International Class 25 are Confusingly Similar to the Goods in Registration No. 5,419,326

 

The applicant’s “athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms” are confusingly similar to the registrant’s “clothing, namely, t-shirts, bottoms, tops, jackets, caps, hats, and wrist bands.”  The applicant’s goods are identical in part to the registrant’s goods as the identifications of both parties include “jackets,” “hats,” and “caps.”  Although not all of the goods are identical, they are confusingly similar because they are clothing and apparel products that commonly emanate from the same entities and are sold in the same marketing channels.  The record contains numerous representative third party registrations from the USPTO X-Search database showing use of the same mark on shirts, t-shirts, pants, bottoms, jackets, tops, footwear, hats, caps, athletic uniforms, and wristbands.  See February 1, 2019 Office Action, TSDR pp. 36-74.  These third party registrations are representative of a large number of similar registrations.  This evidence shows that different types of clothing and apparel may emanate from a single source under a single mark.  See In re I-Coat Co., 126 USPQ2d 1730, 1737 (TTAB 2018) (citing In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel & Sons Co.,29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988)); TMEP §1207.01(d)(iii).  In addition, the record also contains Internet evidence from the websites of clothing retailers that provide various types of clothing and apparel under the same mark.  For example, the screen captures from www.express.com and www.anntaylor.com show use of the same mark on tops, t-shirts, pants, and jackets.  See February 1, 2019 Office Action, TSDR pp. 20-35. 

 

Decisions regarding likelihood of confusion in the clothing field have found many different types of apparel to be related goods.  Cambridge Rubber Co. v. Cluett, Peabody & Co., 286 F.2d 623, 624, 128 USPQ 549, 550 (C.C.P.A. 1961) (women’s boots related to men’s and boys’ underwear); Jockey Int’l, Inc. v. Mallory & Church Corp., 25 USPQ2d 1233, 1236 (TTAB 1992) (underwear related to neckties); In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991) (women’s pants, blouses, shorts and jackets related to women’s shoes); In re Pix of Am., Inc., 225 USPQ 691, 691-92 (TTAB 1985) (women’s shoes related to outer shirts); In re Mercedes Slacks, Ltd., 213 USPQ 397, 398-99 (TTAB 1982) (hosiery related to trousers); In re Cook United, Inc., 185 USPQ 444, 445 (TTAB 1975) (men’s suits, coats, and trousers related to ladies’ pantyhose and hosiery); Esquire Sportswear Mfg. Co. v. Genesco Inc., 141 USPQ 400, 404 (TTAB 1964) (brassieres and girdles related to slacks for men and young men).

 

The applicant argues that it is unlikely that consumers would confuse the source of apparel because the registrant sells athletic clothing related to its basketball skills training instruction, while the applicant’s consumers are individuals participating in a common workout routine (Applicant’s brief at pages 5- 6).  The applicant’s argument is insufficient because determining likelihood of confusion is based on the description of the goods and/or services stated in the application and registration at issue, not on extrinsic evidence of actual use.  See In re Detroit Athletic Co., 903 F.3d 1297, 1307, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018) (citing In re i.am.symbolic, llc, 866 F.3d 1315, 1325, 123 USPQ2d 1744, 1749 (Fed. Cir. 2017)). Furthermore, the applicant’s argument is unpersuasive to overcome the similarity of the goods, because clothing and apparel products are often marketed to the same consumer.  The evidence of record clearly shows that companies make the types of products sold by the applicant and registrant and market them to the same consumer.  Also, neither the application nor the registration contains any limitations regarding trade channels for the goods and therefore it is assumed that registrant’s and applicant’s goods are sold everywhere that is normal for such items, i.e., clothing and department stores.  Thus, it can also be assumed that the same classes of purchasers shop for these items and that consumers are accustomed to seeing them sold under the same or similar marks.  See Kangol Ltd. v. KangaROOS U.S.A., Inc., 974 F.2d 161, 23 USPQ2d 1945 (Fed. Cir. 1992); In re Smith & Mehaffey, 31 USPQ2d 1531 (TTAB 1994); TMEP §1207.01(a)(iii). 

 

The Applicant’s Services in International Class 41 are Confusingly Similar to the Services in Registration No. 5,010,515

The applicant’s “health club services, namely, providing instruction and equipment in the field of physical exercise” are confusingly similar to the registrant’s “dance instruction; education services, namely, providing classes and instruction in the field of dance.”  The registrant’s mark includes the wording “DANCE FITNESS” and this presumes that registrant’s dance instruction is provided as a form of physical fitness instruction. 

 

The services of the applicant and registrant are confusingly similar because the services commonly emanate from the same entities and are provided through the same trade channels.  The record contains representative Internet evidence showing that the same entity provides the relevant services and markets the services under the same mark.  Specifically, the evidence of record consists of printouts from the web sites of third parties that provide both health club services and dance instruction.  See February 1, 2019 Office Action, TSDR pp. 7-19.  For example, the printouts from the Chicago Athletic Clubs website www.chicagoathleticclubs.com/dance, the Newtown Athletic Club website www.newtownathletic.com/youth-programs/dance/, the Ballard Health Club website www.ballardhealthclub.com/dance, and the 24 Hour Fitness website www.24hourfitness.com/classes/dance  show use of the same mark to identify health club services and dance classes.  Thus, the applicant’s services and the registrant’s services are considered related for likelihood of confusion purposes.  See, e.g., In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-04 (TTAB 2009); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1268-69, 1271-72 (TTAB 2009).

 

The applicant argued against the services being confusingly similar by asserting that consumers of specialized exercise classes have somewhat of a “cult following” and have a tendency toward brand loyalty.  (Applicant’s brief at page 6).  The fact that purchasers are sophisticated or knowledgeable in a particular field does not necessarily mean that they are sophisticated or knowledgeable in the field of trademarks or immune from source confusion.  TMEP §1207.01(d)(vii); see, e.g., Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d. 1317, 1325, 110 USPQ2d 1157, 1163-64 (Fed. Cir. 2014); Top Tobacco LP v. N. Atl. Operating Co., 101 USPQ2d 1163, 1170 (TTAB 2011).  Further, where the purchasers consist of both professionals and the public, the standard of care for purchasing the goods is that of the least sophisticated potential purchaser.  In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 2018) (citing Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d. at 1325, 110 USPQ2d at 1163), aff’d per curiam, 777 F. App’x 516, 2019 BL 375518 (Fed. Cir. 2019).  The fact that the services of the parties differ is not controlling in determining likelihood of confusion.  The issue is not likelihood of confusion between particular services, but likelihood of confusion as to the source or sponsorship of those services.  In re Majestic Distilling Co., 315 F.3d 1311, 1316, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003); In re Shell Oil Co., 992 F.2d 1204, 1208, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993); TMEP §1207.01.

 

The overriding concern is not only to prevent buyer confusion as to the source of the goods and/or services, but to protect the registrant from adverse commercial impact due to use of a similar mark by a newcomer.  See In re Shell Oil Co., 992 F.2d 1204, 1208, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993).  Therefore, any doubt regarding a likelihood of confusion determination is resolved in favor of the registrant.  TMEP §1207.01(d)(i); see Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1265, 62 USPQ2d 1001, 1003 (Fed. Cir. 2002); In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 464-65, 6 USPQ2d 1025, 1026 (Fed. Cir. 1988).

 

CONCLUSION

The applied-for mark and the registered marks are highly similar, the evidence clearly establishes the relatedness of the goods and services, and the goods and services are found in the same channels of trade.  The examining attorney respectfully asks the Board to affirm the refusal to register under Trademark Act Section 2(d). 

 

 

 

 

 

                                                                       Respectfully submitted,

 

 

/Coleman, Cimmerian/

Trademark Examining Attorney

Law Office 102

571-272-9146

cimmerian.coleman@uspto.gov 

             

 

 

Mitchell Front

Managing Attorney

Law Office 102

571-272-9382

mitchell.front@uspto.gov

 

 

 

United States Patent and Trademark Office (USPTO)

 

USPTO OFFICIAL NOTICE

 

Examining attorney’s appeal brief has issued

on June 08, 2020 for

U.S. Trademark Application Serial No. 88156504

 

Please follow the steps below.

 

(1)  Read the appeal brief.

 

(2)  Direct questions about the appeal proceeding to the Trademark Trial and Appeal Board at 571-272-8500 or TTABInfo@upsto.gov. 

 

(3)  Submit reply brief within 20 days of June 08, 2020, if you wish to do so.  A reply brief must be submitted using the Electronic System for Trademark Trials and Appeals (ESTTA) and received by the USPTO before midnight Eastern Time of the last day of the reply period.