Bellini Warenvertriebsgesellschaft mbHv.E. James Monson

Trademark Trial and Appeal Board

Aug 27, 1999

No. 91103128 (T.T.A.B. Aug. 27, 1999)

Paper No. 15
RLS/cj
THIS DISPOSITION IS NOT CITABLE AS
PRECEDENT OF THE TTAB AUGUST 27,99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Bellini Warenvertriebsgesellschaft mbH
v.
E. James Monson
_____
Opposition Nos. 103,125 & 103,128
to applications Serial Nos. 75/001,125
and 74/734,226
_____
Fernanda M. Fiordalisi of Buchnam and Archer for Bellini
Warenvertriebsgesellschaft mbH.
Thomas S. Birney of Dorr Carson Sloan & Birney, P.C. for E.
James Monson.
______
Before Simms, Seeherman and Walters, Administrative
Trademark Judges.
Opinion by Simms, Administrative Trademark Judge:
Bellini Warenvertriebsgesellschaft mbH (opposer), a
German corporation, has opposed the applications of E. James
Monson to register the marks SPORTS CLOSET and SPORTSMAN’S
CLOSET for sportswear clothing, namely, shirts, pants,
jackets, shorts and caps.1 Opposer asserts that it makes

1 Application Serial No. 75/001,125, filed October 3, 1995, based
upon applicant’s allegation of a bona fide intention to use the
mark in commerce; and application Serial No. 74/734,226, filed
Opposition Nos. 103,125 and 103,128
2
and sells a variety of clothing items and personal care
items such as cosmetics, perfumes and fragrances; that,
prior to the filing date of applicant’s applications, it has
sold these goods under the mark CLOSED in this country; that
it has obtained registrations for that mark for a variety of
clothing items and for personal care and cosmetic products;2
and that applicant’s marks so resemble opposer’s previously
used and registered mark as to be likely to cause confusion,
to cause mistake or to deceive. In his answer, applicant
has denied the essential allegations of the notices of
opposition. These cases were consolidated on motion on June
24, 1997. Opposer has submitted testimony and a notice of
reliance upon the two pleaded registrations. Applicant has
taken no testimony. The parties have submitted briefs but
no oral hearing was requested.
Opposer took the testimony of the general manager of
the exclusive importer and distributor of clothing sold
under the mark CLOSED. This witness testified that
opposer’s CLOSED men’s and women’s sportswear has been sold
in this country through his company by 15 retailers since
early 1997. He testified that he was aware of opposer’s
mark since the mid-1980s. Sales have totaled over $100,000.

September 25, 1995, based upon applicant’s allegation of a bona
fide intention to use the mark in commerce.
2 Registration No. 1,254,909, issued October 18, 1983, Section 8
affidavit accepted; and Registration No. 1,621,894, issued
November 13, 1990, Sections 8 and 15 affidavit filed.
Opposition Nos. 103,125 and 103,128
3
With respect to the pleaded registrations, this record
does not support opposer’s claim of ownership thereof. The
registrations issued to Ball S.r.l. of Rimini, Italy, in the
case of the ‘909 registration, and to Ball S.p.a., in the
case of the ‘894 registration. According to the status and
title copies submitted during trial, they are both now owned
by Ball S.p.a., not by opposer Bellini. However, opposer’s
witness testified that he is the importer and distributor of
CLOSED clothing manufactured by opposer Bellini. Therefore,
while the record may not support opposer’s ownership of the
pleaded registrations, it does support opposer’s prior use
of the mark in this country. We note that applicant has not
raised a question as to opposer’s lack of ownership in his
brief.
Nor does applicant contest the issue of priority. In
this regard, while opposer’s witness testified that he had
been importing CLOSED products since January 1997, which was
after the filing dates of applicant’s applications, he also
stated that, being in the industry, he was aware of the
label since the mid-1980s, and had purchased a CLOSED pair
of jeans in a retail store at that time.
Concerning the issue of likelihood of confusion,
opposer argues that the marks CLOSED, on the one hand, and
SPORTS CLOSET and SPORTSMAN’S CLOSET, on the other, are
similar in sound, appearance and meaning. In this regard,
Opposition Nos. 103,125 and 103,128
4
opposer argues that the allegedly dominant part of
applicant’s mark, the word CLOSET, is identical to opposer’s
mark except for the last letter. With respect to meaning,
opposer argues that its mark CLOSED connotes something
enclosed while applicant’s marks suggest an enclosed
structure for clothes. It is opposer’s contention,
therefore, that the marks have similar meanings. Opposer
also argues that the goods are either identical or closely
related.
Applicant, on the other hand, contends that the marks
are different in sound, appearance and connotation.
Applicant contends that a “closet” is a small room or a
place for storing valuable things or household requisites,
while the word “closed” means being shut or ended.3
While opposer has established its priority and that the
respective goods are identical or closely related, we
nevertheless believe that there is no likelihood of
confusion. We agree with applicant that his marks SPORTS
CLOSET and SPORTSMAN’S CLOSET are so obviously different
from opposer’s mark CLOSED in sound, appearance and
connotation that confusion is unlikely. Accordingly, we do

3 Applicant has set forth in his brief a listing of third-party
registrations containing the word CLOSE or variations thereof for
related goods. Applicant has not submitted a notice of reliance
upon copies of these registrations so they are not in evidence.
We do not take “administrative notice” of such registrations, as
requested by applicant. See In re Hub Distributing, Inc., 218
USPQ 285 (TTAB 1983) and In re Duofold, Inc. 184 USPQ 638, 640
(TTAB 1974).
Opposition Nos. 103,125 and 103,128
5
not believe that a purchaser, aware of opposer’s CLOSED
clothing, upon encountering applicant’s SPORTS CLOSET
and SPORTMAN’S CLOSET clothing, would believe that these
goods come from the same source because of any alleged
similarities in the marks.
Decision: The oppositions are dismissed with prejudice.
R. L. Simms
E. J. Seeherman
C. E. Walters
Administrative Trademark
Judges, Trademark Trial
and Appeal Board