Alice Shope

Trademark Trial and Appeal BoardJan 28, 2021

88192468 (T.T.A.B. Jan. 28, 2021)

This Opinion is not a Precedent of the TTAB Mailed: January 28, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Alice Shope _____ Serial No. 88192468 _____ Michael J. Doherty of Doherty IP Law Group LLC, for Alice Shope. Xheneta Ademi, Trademark Examining Attorney, Law Office 130, John Lincoski, Managing Attorney. _____ Before Wellington, Lykos and Greenbaum, Administrative Trademark Judges. Opinion by Wellington, Administrative Trademark Judge: Alice Shope, LLC (“Applicant”), seeks registration on the Principal Register of the standard character mark PUP TOPPERS for “diapers for dogs” in International Class 5, and “belly bands for dogs; dog clothing; dog coats; dog parkas” in International Class 18.1 1 Application Serial No. 88192468 was filed on November 13, 2018, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intent to use the mark in commerce. Serial No. 88192468 - 2 - The Trademark Examining Attorney has refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), because Applicant’s mark, when used on the identified goods, so resembles the registered mark: for “collars for animals; collars for pets; dog collars; pet collar accessories, namely, bows and charms; pet collar accessories, namely, charms; pet products, namely, pet restraining devices consisting of leashes, collars, harnesses, restraining straps, and leashes with locking devices” in International Class 18,2 as to be likely to cause confusion, to cause mistake or to deceive. Applicant appealed the refusal made final by the Examining Attorney. The appeal has been briefed. We affirm the refusal to register. Likelihood of Confusion Section 2(d) of the Trademark Act prohibits registration of a mark that so resembles a registered mark as to be likely, when used on or in connection with the goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C. § 1052(d). Our determination of likelihood of confusion under Section 2(d) is based on an analysis of all probative facts in the record that are relevant to the likelihood of confusion factors set forth in In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177 2 Registration No. 3840558 issued on August 31, 2010, and has been renewed. Serial No. 88192468 - 3 - USPQ 563, 567 (CCPA 1973) (“DuPont”). We must consider each DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the relatedness between the goods or services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). A. Relatedness of Goods and Trade Channels We first consider the DuPont factors involving the relatedness of the goods and their channels of trade. We base our determinations with respect to these factors on the goods as they are identified in the application and the cited registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Hous. Comput. Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990)); In re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011). At the outset, we address Applicant’s reliance on printouts from Registrant’s website and her argument that this evidence “shows a beer bottle and promotes the fact that the mark is used on goods that teach an ‘OLD DOG BEER TRICKS’ and to sell a ‘bottle opener/leash attached.’”3 Applicant further argues “[t]he registered mark is used to sell bottle openers to motorcyclists and bikers who want to open beer bottles.”4 This argument is unavailing because Registrant’s identification of goods 3 4 TTABVUE 5; printouts attached August 16, 2019 Response, TSDR pp. 2-5. 4 Id. Serial No. 88192468 - 4 - does not mention bottle openers or any goods that have any such bottle opening capacity. We must construe Registrant’s “pet restraining devices consisting of leashes, collars, harnesses, [and] restraining straps” as unrestricted and encompassing plain dog leashes and dog collars, without bottle openers. The Board has “no authority to read any restrictions or limitations into the registrant's description of goods.” In re Thor Tech Inc., 90 USPQ2d 1634, 1638 (TTAB 2009). Nor may an applicant restrict the scope of the goods covered in a cited registration by argument or extrinsic evidence. In re Midwest Gaming & Entm’t LLC, 106 USPQ2d 1163, 1165 (TTAB 2013); In re La Peregrina Ltd., 86 USPQ2d 1645, 1647 (TTAB 2008); In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986). Based on the identifications alone, there is clearly an inherent relationship between Applicant’s dog diapers and dog clothing and Registrant’s dog collars and pet restraining devices like leashes, harnesses, etc. All of these goods are supplies and accessories that may be fitted simultaneously to a pet dog. In addition, the evidence demonstrates a close relationship between these goods. The Examining Attorney submitted Internet evidence showing Applicant’s and Registrant’s goods are offered for sale in the same trade channels to the same class of consumers, and they are the type of goods that may emanate from a common source under the same mark.5 Specifically, the Examining Attorney submitted printouts from 6 different retail pet supply websites, each featuring both Applicant’s and Registrant’s goods. For example, 5 Attached to December 30, 2019 Office Action, TSDR pp. 5-21, and October 11, 2019 Office Action, TSDR pp. 5-27. Serial No. 88192468 - 5 - the PETCO website (www.petco.com) offers a selection of diaper products and clothing for dogs, as well as leashes and collars.6 Another retail pet supply website, PETSMART (www.petsmart.com) offers collars, leashes, along with a variety of types of diapers, all for dogs.7 The Examining Attorney also submitted copies of 10 third-party, use-based registrations, each depicting the same mark for both Applicant’s goods and goods listed in the cited registration.8 These registrations are probative because they serve to suggest that the goods identified in those registrations are of a kind which may emanate from a single source under a single mark. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). In sum, we find the goods are inherently related because they are pet dog supplies and accessories and, as such, may be marketed to the same class of consumers, namely, dog owners. Additionally, the evidence shows that these types of goods are offered for sale in the same trade channel of online retail stores featuring pet supplies. Accordingly, these DuPont factors favor a finding of likelihood of confusion. B. Comparison of the Marks We now consider the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. Stone Lion, 110 USPQ2d at 1160; DuPont, 177 USPQ at 567. “Similarity in any one of these elements 6 October 11, 2019 Office Action, TSDR pp. 5-7, 12-17. 7 Id., pp. 18-27. 8 Id., pp. 28-55. Serial No. 88192468 - 6 - may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, 126 USPQ2d at 1746. Accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted)). The issue is not whether the marks can be distinguished when subjected to a side- by-side comparison, but rather whether the marks are sufficiently similar in terms of their overall commercial impression that confusion as to the source of the goods offered under the respective marks is likely to result. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). The focus is on the recollection of the average purchaser, who normally retains a general rather than specific impression of trademarks. Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). We do not predicate our analysis on a dissection of the involved marks; we consider the marks in their entireties. Stone Lion, 110 USPQ2d at 1160; Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected and considered piecemeal; rather, it must be considered as a whole in determining likelihood of confusion.”). We agree with the Examining Attorney that the marks, PUP TOPPERS and , are overall very similar based largely on the fact that the first two syllables of Applicant’s mark, or first six letters, are essentially the same as the literal portion of the registered mark. The marks are thus aurally and visually Serial No. 88192468 - 7 - similar. Although the cited mark is in stylized lettering, Applicant seeks registration of her proposed mark in standard character format and seeking rights to a mark that may be displayed in different font styles, colors and sizes, including the same stylization depicted in the registered mark. See In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1186 (TTAB 2018) (“[T]he rights associated with a standard character mark reside in the wording per se and not in any particular font style, size, or color.”) In assessing Registrant’s mark, the wording PUP TOP is dominant. While the bottle cap design in Registrant’s mark is a difference, it does not make a great impact visually and may be overlooked since it fairly accurately represents the letter O in the word TOP. Also, as often stated, when wording and a design comprise the mark, the wording is normally accorded greater weight because it is likely to make a stronger impression upon purchasers, would be remembered by them, and would be used by them to request the goods. CBS, Inc. v. Morrow, 218 USPQ 198, 200 (Fed. Cir. 1983) (“in a composite mark comprising a design and words, the verbal portion of the mark is the one most likely to indicate the origin of the goods to which it is affixed”); Joel Gott Wines LLC v. Rehoboth Von Gott Inc., 107USPQ2d 1424, 1430-31 (TTAB 2013). In other words, PUP TOP is more likely to make a greater impression on consumers and be remembered for purposes of source-identification. See In re Viterra Inc., 101 USPQ2d at 1911 (“the verbal portion of a word and design mark likely will be the dominant portion ... given that the literal component of brand names likely will appear alone when used in text and will be spoken when requested by consumers.”); Bos. Red Sox Baseball Club LP v. Sherman, 88 USPQ2d 1581 (TTAB Serial No. 88192468 - 8 - 2007) (“It has frequently been stated that it is the word portion of marks, rather than the particular display of the words, that is likely to have a greater impact on purchasers and be remembered by them.”). As to the marks’ overall commercial impressions, we see little distinction. Again, consumers are likely to remember the literal PUP TOP element of Registrant’s mark and there is little difference between this term and Applicant’s mark, PUP TOPPERS. Both are suggestive that the dog supplies and accessories may be for puppies. As to Applicant’s argument that the Registrant’s mark also suggests that Registrant’s products “are used for opening bottles,”9 Applicant does not elaborate. We find it far-fetched that a consumer encountering Registrant’s mark in connection with dog leashes and collars would make perceive such a connotation. Applicant also argues that her mark, PUP TOPPERS, suggests that her goods “are intended to be placed over the top of a dog and/or wrapped around a dog such as dog diapers and dog coats.”10 While we agree that it is possible that consumers would understand the mark in this manner, we also find that the wording in Registrant’s mark, PUP TOP, is also likely to convey the same or very similar meaning in connection with dog harnesses and other restraining devices, i.e., they are placed or attached to the top of the puppy. 9 4 TTABVUE 4. 10 Id. Serial No. 88192468 - 9 - In sum, Applicant’s mark, PUP TOPPERS, and Registrant’s stylized mark, PUP TOP with design, are overall similar. Accordingly, the factor of the similarity of the marks also favors a finding of likelihood of confusion. C. Conclusion Applicant’s dog diapers and dog clothing are very closely related to Registrant’s dog collars and other “pet restraining devices consisting of leashes, collars, harnesses, [and] restraining straps,” because they are supplies and accessories that may be used simultaneously on the same pet, they are sold in the same trade channels to the same class of consumers, and they are the type of goods that may emanate from a common source under the same mark. Thus, should Applicant’s and Registrant’s goods be sold under the respective similar marks, PUP TOPPERS and , we find confusion as to source of the goods is likely to occur. Decision: The refusal to register Applicant’s mark under Section 2(d) is affirmed.