Airborne Athletics, Inc.

Trademark Trial and Appeal Board

Jul 2, 2012

No. 76699839 (T.T.A.B. Jul. 2, 2012)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB

Mailed: July 2, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Airborne Athletics, Inc.
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Serial No. 76699839
_______

Catherine A. Shultz of Kinney & Lange PA for Airborne Athletics,
Inc.

Elissa Garber Kon, Trademark Examining Attorney, Law Office 106
(Mary I. Sparrow, Managing Attorney).
_______

Before Seeherman, Lykos, and Kuczma, Administrative Trademark
Judges.

Opinion by Lykos, Administrative Trademark Judge:

Airborne Athletics, Inc. (“applicant”) filed an application
to register the mark DRILL WIZARD, with DRILL disclaimed, in
standard character format for goods identified, as amended, as
“athletic training equipment, namely, computerized controls sold
as a component of ball-delivery training machines for setting up
and executing machine assisted training routines for ball
sports” in International Class 28.1

1 Application Serial No. 76699839, filed October 14, 2009, pursuant to
Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b).

Serial No. 76699839

2
The Trademark Examining Attorney refused registration of
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. § 1052(d), on the ground that applicant’s mark
so resembles the registered mark SHOT WIZARD, also in standard
character format, and with SHOT disclaimed, for “basketball
training devices, namely, devices for placing over basketball
rims to aid in shot training” in International Class 28,2 that
when used on or in connection with applicant’s identified goods,
it is likely to cause confusion or mistake or to deceive.3
For the reasons discussed below, the Board reverses the
refusal to register.
We base our determination under Section 2(d) on an analysis
of all of the probative evidence of record bearing on a
likelihood of confusion. In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also, In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003). We discuss each of the du Pont
factors as to which applicant or the examining attorney
submitted argument or evidence.
First, we consider the goods and conditions of purchase.
The examining attorney, relying primarily on the language of
applicant’s and registrant’s identification of goods, contends

2 Registration No. 3125776, issued August 8, 2006 on the Principal
Register.
3 During ex parte prosecution, the examining attorney withdrew a
descriptiveness refusal pursuant to Section 2(e)(1).
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that the products are closely related because they serve the
same function of basketball shot aids. As the examining
attorney argues, “applicant’s identification of goods is broad
enough to encompass computer controls sold as components of
apparatus used in executing basketball shooting drills, even if
it can be used in performing other drills and for other sports.”
Examining Attorney’s Brief, unnumbered page 3. To further
support the contention that the goods are related, the examining
attorney in her brief focuses on the promotional materials
submitted by applicant to argue that the term “DRILL” in
applicant’s mark refers to basketball training and shooting
drills, and therefore it is clear that applicant’s product is
designed primarily for the sport of basketball even if it can be
used for performing other types of drills for other sports.4
We agree with the examining attorney that applicant’s
identification of goods is sufficiently broad to encompass a
component for basketball shot training devices. We also agree
with the examining attorney that applicant’s promotional
materials confirm that its goods are used for such a purpose.
However, the fact that applicant’s and registrant’s goods both
fall within the overall category of basketball shot training
aids does not necessarily make them related. See, e.g., In re

4 Although the application remains intent-to-use, during ex parte
prosecution applicant submitted advertisements for the goods.
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4
White Rock Distilleries Inc., 92 USPQ2d 1282, 1285 (TTAB 2009)
(regarding alcoholic beverages); Hi-Country Foods Corp. v. Hi
Country Beef Jerky, 4 USPQ2d 1169, 1171-72 (TTAB 1987)
(regarding food products).
The Board’s decision in the case of In re Princeton
Tectonics, Inc., 95 USPQ2d 1509 (TTAB 2010), is particularly
instructive here since it involved an identical mark used on
goods which performed the same function. The examining attorney
in that case argued that applicant’s “personal headlamps” in
International Class 11 were related to registrant’s “electric
lighting fixtures” in the same class because “the primary
purpose of both types of goods is ‘… to emit and to provide
light’” and because registrant’s identification of goods was
“broad enough to encompass applicant's goods.” Id. at 1510.
The Board, however, was not persuaded:
At the outset we note that the mere fact that both types of
goods at issue here emit and provide light is not a
sufficient basis for us to conclude that the goods are
related. The goods, as identified, are sufficiently
different in their uses to require proof that they are
related. Nor can we conclude by intuition that both types
of goods would be sold through common trade channels.

Id. Ultimately the Board found the third-party registrations
and website evidence submitted by the examining attorney
insufficient to show relatedness. Id. at 1512.
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Similarly, in the case before us, although both applicant’s
and registrant’s goods consist of basketball training devices,
there are intrinsic differences in the goods as identified.
Applicant’s goods are computerized controls sold as a component
of ball delivery training machines whereas registrant’s goods
are a mechanical device placed on the basketball rim.
More problematic, the examining attorney has not introduced
any evidence (for example, third-party registrations or excerpts
from third-party websites) to show that applicant’s and
registrant’s goods may emanate from a single source.5 See, e.g.,
In re Princeton Tectonics, Inc., 95 USPQ2d at 1510; In re White
Rock Distilleries Inc., 92 USPQ2d 1282, 1285 (TTAB 2009)
(finding Office had failed to establish that wine and vodka
infused with caffeine are related goods because there was no
evidence that vodka and wine emanate from a single source under
a single mark or that such goods are complementary products that
would be bought and used together). By contrast, applicant has
introduced evidence to show that the channels of trade and
purchasers of applicant’s goods differ from that of registrant.
According to excerpts from applicant’s website,

5 With her final Office Action, the examining attorney submitted
excerpts from third-party websites which sell various types of
basketball training aids for shot improvement to show that the goods
originate from the same “genus.” This evidence was not discussed in
her brief. Nonetheless, we have reviewed this evidence and have
determined that it fails to support a finding that both applicant’s
and registrant’s products would be manufactured by the same company or
marketed under the same brand name.
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www.airborneathletics.com, and promotional materials, DRILL
WIZARD is touted as a sophisticated component of applicant’s
ball-delivery machines. As noted in the materials:
From fundamentals to offensive innovation, experience the
ultimate in efficiency! Using our proprietary Drill
Wizard™, you can customize and save 50 custom drills right
on the machine. Change ball speed, tempo, rotation range
and speed, all on the fly, then save it! No springs, no
hand cranks, just pure fingertip control for ease of use
and maximum training efficiency. And, because of
Airborne’s digital controls and precise pneumatic delivery,
you can rest assured that the drills will be carried out
with precision for the kind of game-winning performance
that comes from solid drill repetition.

Equally important, the ball delivery machines in which
applicant’s part is a component are expensive, costing between
$4995-$6995, thereby making it a significant expenditure which
would be carefully researched. This is confirmed by the
evidence submitted by applicant of excerpts from a basketball
coach messaging board, comparing the various features of
applicant’s ball-delivery machines with those of competitors.
Applicant’s Response to Office Action (February 16, 2011),
Exhibit B. Due to its high cost and large size, these goods are
not the type of item that would be purchased by the casual
athlete. Rather, as illustrated by the message board, the
typical purchaser of applicant’s product would be an athletic
coach for a school or club, whom we treat as a sophisticated
purchaser of training equipment. We acknowledge that these same
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purchasers would also purchase registrant’s goods. However,
such purchasers are not likely to assume that applicant’s and
registrant’s goods emanate from a single source simply because
both are used in improving basketball skills. Rather, because
they would know about basketball equipment, they would be aware
that goods such as applicant’s and goods such as registrant’s do
not normally emanate from a single source.
Registrant’s goods cost $99.95. Applicant’s Response to
Office Action (February 16, 2011), Exhibit C. Based on their
price range, registrant’s goods could be purchased by the
amateur athlete. However, it is not clear from this record that
such a purchaser, e.g., a high school or college basketball
player, would encounter applicant’s mark DRILL WIZARD when used
as a component for its ball delivery training machines. Even if
the ordinary athlete were to use both applicant’s and
registrant’s goods during their training and drills, and were to
note the DRILL WIZARD mark on the component of applicant’s
machine, given the difference in the intrinsic nature of each
product, he or she is not likely to assume that both products
are manufactured by the same company. We therefore find that
the Office has not established that the goods are related.
Further, we find that the conditions of purchase factor
favors registrant. Applicant’s goods, because of their cost,
would be purchased with care, and are purchased by knowledgeable
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purchasers. Although registrant’s goods are far less expensive
than applicant’s, at approximately $100 they are not a casual or
impulse purchase for the amateur athlete.
Next, we consider and compare the appearance, sound,
connotation and commercial impression of the marks in their
entireties. In re E. I. du Pont De Nemours & Co., 177 USPQ at
567. We acknowledge that the marks are similar to the extent
that they each contain the word WIZARD. However, because of the
nature of applicant’s goods, the term WIZARD has a particular
“computer” meaning when used with applicant’s goods that is not
applicable to registrant’s goods. See First Office Action
(January 19, 2010), definition of “wizard” attached from
Dictionary.com, which states, inter alia, “An interactive help
utility that guides the user through a potentially complex task,
such as configuring a PPP driver to work with a new modem.
Wizards are often implemented as a sequence of dialog boxes
which the user can move forward and backward through, filling in
the details required.” This difference in connotation somewhat
differentiates the marks, and we treat the first du Pont factor
as slightly favoring applicant.
To the extent that there are any other relevant du Pont
factors, we treat them as neutral. After considering all of the
evidence of record and argument pertaining to the du Pont
likelihood of confusion factors, and in particular the
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differences in the nature of the goods and the care with which
they are purchased, we find that the Office has not satisfied
its burden of proving that confusion is likely. However, we
emphasize that we have reached our determination that confusion
is not likely based on the record before us. On a different
record, such as might be adduced in an inter partes proceeding,
we might well come to a different conclusion.
Decision: The Section 2(d) refusal is reversed.