Ben Thrasher

Trademark Trial and Appeal Board

May 23, 2012

No. 77509917 (T.T.A.B. May. 23, 2012)

Hearing: October 27, 2011 Mailed: May 23, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Ben Thrasher
________

Serial No. 77509917
_______

Jeffrey L. Van Hoosear of Knobbe, Martens, Olson & Bear, LLP for
Ben Thrasher.

Tamara G. Frazier, Trademark Examining Attorney, Law Office 116
(Michael W. Baird,1 Managing Attorney).
_______

Before Holtzman, Shaw and Kuczma, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

Applicant, Ben Thrasher, has filed an application to
register the standard character mark BENTHRASHER on the Principal
Register for goods ultimately identified as "clothing, namely,
jackets, coats, shirts and pants,” in Class 25."2 The
application states that “BENTHRASHER identifies a living
individual whose consent is of record.”

1 Mr. Baird argued on behalf of the Office at the oral hearing.
2 Application Serial No. 77509917 filed on June 27, 2008 based on an
allegation of a bona fide intention to use the mark in commerce.
THIS OPINION IS
NOT A PRECEDENT OF
THE TTAB
Ser No. 77509917
2
The trademark examining attorney has refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant's mark, when applied to applicant's goods, so resembles
the marks in the following three registrations, owned by two
different entities, as to be likely to cause confusion.3
The first two registrations listed below issued to High
Speed Productions, Inc. (“HSP”) and the third registration issued
to the Atlanta Hockey Club, Inc. (“AHC”).4 There is a consent
agreement between the owners of the cited registrations.
Registration No. 3371116 for the typed mark THRASHER
for the following goods:5

Clothing, namely, men's, women's, junior's
and children's clothing, namely, bandanas,
blouses, shirts, sweater, jerseys, coats,
jackets, suits, jeans, slacks, pants, short,
skirts, culottes, vests jumpsuits, dresses,
tunics, T-shirts, polo shirts, sweatshirts,
sweatpants, warm-up suits, rain wear, robes,
pajamas, nightgowns, nightshirts, lingerie,
underwear, lounge wear, dressing gowns, house
coats, jogging suits, swim wear, beachwear,
socks, headbands, ear muffs scarves, hats,
caps, ties, toques, gloves, mittens,
stocking, hosiery, tights, leggings,
leotards, socks, footwear, sandals, slippers,
belts, wristbands, in Class 25;

3 The examining attorney initially cited an additional registration
(Registration No. 1593990), which was cancelled by the Office on
October 24, 2011. The refusal as to this registration is therefore
moot.
4 Subsequent to the briefing of the appeal, this registration was
assigned to the National Hockey League and the assignment was recorded
in the Office on July 6, 2011. Inasmuch as applicant in his arguments
and evidence refers to the original owner, we will do the same.
5 Issued January 22, 2008.
Ser No. 77509917
3
Registration No. 1447232 for the typed mark THRASHER
for “clothing, namely shirts, pants, coats, caps,” in
Class 25;6 and

Registration No. 3068494 for the typed mark THRASHERS
for “clothing, namely, caps, cloth bibs, coats, hats,
jackets, jerseys, pajamas, pants, shirts, shorts,
socks, sweatshirts, T-shirts, toques,” in Class 25.7

When the refusal was made final, applicant appealed.
Briefs8 and supplemental briefs9 have been filed. An oral hearing
was held.
Our determination under Section 2(d) is based on an analysis
of all of the probative facts in evidence that are relevant to
the factors bearing on the likelihood of confusion issue. In re

6 Issued July 14, 1987; renewed.
7 Issued March 14, 2006; combined declaration under Sections 8 and 15
accepted and acknowledged.
8 The third-party registrations submitted by applicant for the first
time with his reply brief are manifestly untimely and will not be
considered. See Trademark Rule 2.142(d); and In re Zanova Inc., 59
USPQ2d 1300, 1302 (TTAB 2001) (“By attempting to introduce evidence
with his reply brief, applicant has effectively shielded this material
from review and response by the Examining Attorney.”). Nor will we
consider applicant's unsupported arguments in his reply brief which are
based on or relate to this untimely evidence.
9 After the appeal was fully briefed, applicant filed a request to
remand the application to the examining attorney to consider
applicant’s recently issued Registration No. 3826248 and a related
application (Serial No. 77754770) that was approved for publication.
The Board granted the request and allowed the examining attorney time
to file her response to applicant’s submission, which was to be in the
form of a supplemental brief, and for applicant to file a supplemental
brief in response. Inasmuch as the pending application has now issued
into a registration (No. 4023201) we will consider the registration of
record herein.
We note applicant’s attachment of some 70 pages of materials to his
supplemental brief ostensibly to prove that cited Registration No.
1593990 (referenced above) had been cancelled. Suffice it to say that
this submission was unnecessary, and since none of these materials has
any bearing on the issue for which the application was remanded they
will be given no consideration.
Ser No. 77509917
4
E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). In any likelihood of confusion analysis, however, two key
considerations are the similarities or dissimilarities between
the marks and the similarities or dissimilarities between the
goods and/or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
Goods/Trade Channels/Purchasers
Applicant's goods, which are identified as jackets, coats,
shirts and pants, are identical to the goods listed in the ‘116
registration, and they are identical in part to those listed in
the ‘232 and ‘494 registrations.
Because there are no restrictions in either the application
or the cited registrations, we must assume that these identical
goods are sold in the same channels of trade, to the same
purchasers, including ordinary consumers. See Hewlett-Packard
Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed.
Cir. 2002) (“[A]bsent restrictions in the application and
registration, goods and services are presumed to travel in the
same channels of trade to the same class of purchasers.”); and In
re Smith and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994).
Applicant attempts to distinguish the goods, relying on In
re Trackmobile Inc., 15 USPQ2d 1152 (TTAB 1990), and arguing
that, unlike applicant’s goods, the cited registrations all
identify sports-related “skate” apparel. In particular,
Ser No. 77509917
5
applicant argues that AHC’s apparel is related to the Atlanta
hockey team and HSP’s clothing is related to the sport of
skateboarding which, according to applicant, are “very distinct
from the contemporary professional aesthetic featured in
applicant’s goods.” Brief, p. 19. Based on the asserted
distinctions between the goods, applicant maintains that
registrants’ goods are sold in channels of trade “associated with
skating and skate culture” that would be found in sporting goods
stores or online at sports-related websites whereas applicant’s
goods are sold in “high-end clothing boutiques.” Id., pp. 9, 19.
To support these contentions, applicant submitted listings from
ebay.com, third-party registrations for hockey and skateboarding
goods, printouts from sporting goods websites, and printouts from
various websites relating to skating, and/or to applicant’s and
registrants’ goods. (Req. for Recon., Exhs. A-D, K, L.)
Applicant’s arguments are unavailing and his reliance on
extrinsic evidence to limit the scope of the registrants’ goods
is improper. The law is clear that the question of likelihood of
confusion must be determined based on the identification of goods
in the application and cited registration, regardless of what the
record may reveal as to the actual nature of the goods, the
particular channels of trade or the class of purchasers to which
the goods are directed. Octocom Systems, Inc. v. Houston
Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Ser No. 77509917
6
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
[and registration].”). Furthermore, contrary to applicant's
contention, Trackmobile does not apply in this case. There is no
language in registrants’ identifications of goods that requires
clarification. See In re Continental Graphics Corp., 52 USPQ2d
1374, 1376 (TTAB 1999).
The Marks
We determine the similarity or dissimilarity of the marks in
their entireties in terms of sound, appearance, meaning and
commercial impression. See du Pont, 177 USPQ at 567. See also
Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). In
making this determination, we keep in mind that the more similar
the goods, and here they are identical, the less similarity in
the marks is required to support a finding of likelihood of
confusion. See Century 21 Real Estate v. Century Life, 970 F.2d
874, 23 USPQ2d 1698 (Fed. Cir. 1992).
The test under this du Pont factor 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 impressions that confusion as to the
source of the goods offered under the respective marks is likely
Ser No. 77509917
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to result. The focus is on the recollection of the average
purchaser, who normally retains a general, rather than a
specific, impression of trademarks. See Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975).
In addition, while marks must be compared in their
entireties, "there is nothing improper in stating that, for
rational reasons, more or less weight has been given to a
particular feature of a mark, provided the ultimate conclusion
rests on consideration of the marks in their entireties." In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985).
With these principles in mind, we turn to a comparison of
applicant’s mark BENTHRASHER with registrants’ marks, and first
with HSP’s mark THRASHER in Registration Nos. 3371116 and
1447232. The marks are similar in sound and appearance. The
term THRASHER is registrant's entire mark, and the identical term
THRASHER is aurally and visually a significant part of
applicant's mark. Although BENTHRASHER is presented as a single
term, THRASHER retains its identity in the mark. Applicant’s
mark would be easily viewed as simply a compressed form of the
full name “BEN THRASHER.”
The marks convey essentially the same meanings and
commercial impressions. The first name BEN in applicant’s mark
serves to emphasize that THRASHER is a surname and that it would
Ser No. 77509917
8
be perceived as a surname in registrant’s mark. Further
indicating that THRASHER would be viewed as a surname, we note
the website printouts submitted by applicant which refer to
various individuals with the surname “Thrasher” and which show
that these individuals use the shortened form of their full names
as part of their company names and marks, for example:10 Al
Thrasher of “Thrasher Research Fund” (thrasherresearch.org); Greg
Thrasher of “Thrasher Basement” (thrasherbasement.com); H. Wood
Thrasher and Henry A. Thrasher of “Thrasher Engineering, Inc.”
(thrashereng.com); Scott Thrasher of “Thrasher Construction”
(thrasherconstruction.com); Johnny Thrasher of “Thrasher
Clothing” (thrasherclothing.com). Req. for Recon., Exh. F.
Thus, while the name BEN may add to the commercial
impression of THRASHER in that it identifies the individual named
THRASHER more particularly, it does not change the commercial
impression conveyed by THRASHER alone in any significant way.
BENTHRASHER and THRASHER may be viewed as referring to the same
individual. See, e.g., In re Chatham International Incorporated,
380 F.3d 1340, 71 USPQ2d 1944, 1946 (Fed. Cir. 2004) (JOSE GASPAR
GOLD for tequila confusingly similar to GASPAR’S ALE for ale;
“With respect to JOSE, the Board correctly observed that the term

10 While these materials were introduced by applicant to support his
contention that the term THRASHER is weak (see discussion infra), they
are of record for all purposes.
Ser No. 77509917
9
simply reinforces the impression that GASPAR is an individual’s
name. Thus, in accord with considerable case law, the JOSE term
does not alter the commercial impression of the mark.”); Modern
Shoe Company v. B. B. Walker Shoe Company, 170 USPQ 530, 531
(TTAB 1971) (WALKER confusingly similar to JOHNNIE WALKER, both
for shoes; “Thus, ‘WALKER’ and ‘JOHNNIE WALKER’ could be regarded
as one and the same individual. These names when used as marks
will create the same impression and such impression is greatly
enhanced because they are used on directly competitive goods.”)
Further, as the Board noted in Modern Shoe Company, and as
the evidence above shows, individuals often shorten their full
names to simply a surname, and they are often referred to by
their surnames alone. Modern Shoe Company, 170 USPQ at 531 (“it
is not uncommon to identify an individual by a surname without
reference to a first or Christian name....”). See also Nina
Ricci S.A.R.L. v. E.T.F. Enterprises Inc., 889 F.2d 1070, 12
USPQ2d 1901, 1903 (Fed. Cir. 1989) (“the Board has previously
recognized the practice in the fashion industry of referring to
surnames alone”); Marshall Field & Co. v. Mrs. Fields Cookies, 25
USPQ2d 1321, 1333 (TTAB 1992) (“companies are frequently called
by shortened names, such as Penney’s for J.C. Penney’s, Sears for
Sears and Roebuck,...Ward's for Montgomery Ward’s, and Bloomies
for Bloomingdale’s”); Big M. Inc. v. United States Shoe Corp.,
228 USPQ 614, 616 (TTAB 1985) (“[W]e cannot ignore the propensity
Ser No. 77509917
10
of consumers to often shorten trademarks and, in the present
case, this would be accomplished by dropping the ‘T.H.’ [in T.H.
MANDY] in referring to registrant's stores”); Nina Ricci
S.A.R.L. v. Haymaker Sports, Inc., 134 USPQ 26, 28 (TTAB 1962)
(“it is common knowledge that various couturiers such as
Christian Dior, Huber de Givenchi, and Jacques Fath are
frequently referred to by their surnames alone.”).
Purchasers who are familiar with applicant's mark that
consists in significant part of the surname THRASHER for
clothing, upon encountering THRASHER, alone, used on the
identical goods, would assume a common source for the goods.
They may assume the mark THRASHER identifies another line of
applicant's goods or they may perceive the term as merely a
shortened version of applicant's full name.
For the reasons stated above, we also find that BENTHRASHER
is similar to the mark THRASHERS in AHC’s Registration No.
3068494. The addition of an “s” to the end of this mark is an
insignificant difference. THRASHERS may be viewed simply as the
possessive form of the surname THRASHER without an apostrophe,
which would do little to distinguish the marks as a whole. Cf.
In re Luis Caballero, S.A., 223 USPQ 355, 357 (TTAB 1984)
(“Businesses frequently use a possessive form of their names or
marks without an apostrophe.”); In re Directional Marketing
Ser No. 77509917
11
Corporation, 204 USPQ 675, 677 (TTAB 1979) (“purchasers may well
regard ‘DRUMMONDS’ simply as a possessive form of ‘DRUMMOND.’”).
Applicant argues that the respective marks convey dissimilar
meanings and commercial impressions, relying on the following
definition of “thrasher” from the Urban Dictionary
(urbandictionary.com), a slang dictionary with definitions
submitted by site visitors (Req. for Recon., Exh. H):
5. A dedicated skateboarder or in-line skater.
Someone who considers it not just a sport, but a
life-style. ...

Applicant also refers to a definition of “thrash” from
Merriam-Webster OnLine (merriam-webster.com) (Id., Exh. I):
2a: to beat soundly with or as if with a stick or
whip: b: to defeat decisively or severely
3: to swing, bear, or strike in the manner of a
rapidly moving flail.

Applicant argues that while his mark connotes a person’s
name “such as a clothing designer,” HSP’s mark “connotes an avid
skateboarder” and AHC’s mark “connotes the use of hockey sticks
to defeat an opponent” and is a “play off the verb ‘to thrash.’”
Brief, p. 18.
To begin with, we note that the dictionary definition of
“thrash” would not necessarily apply to AHC’s hockey-related
goods. According to the Wikipedia entry submitted by applicant,
AHC’s hockey team, the Atlanta Thrashers, was named after the
state bird of Georgia, the Brown Thrasher. The team jerseys
Ser No. 77509917
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display a stylized depiction of the bird and the team’s mascot is
“Thrash,” a Brown Thrasher. Req. for Recon., Exh. K
(wikipedia.org).
More important, since registrants’ goods are not, as
previously indicated, restricted to “skate” clothing, the
purchasers for registrants’ goods are presumed to include members
of the general public, many of whom may not be familiar with the
slang meaning of “thrasher” as a skating term, or for that matter
even the meaning of the term as the name of a bird. In any
event, regardless of what other meanings THRASHER may have, at
least one significant meaning of the term is a surname. Many
consumers would regard THRASHER as a surname and BENTHRASHER as a
particular individual with that surname.
Because THRASHER is a significant part of applicant’s mark
and the only component of registrants’ marks, and considering
that the marks are used on directly competitive goods, we find
that the marks as a whole are similar in sound, appearance,
meaning and commercial impression.
Relative strength or weakness of registrants’ marks
Applicant argues that there are numerous third-party
registrations and users of THRASHER and that, therefore, the mark
is weak and entitled only to a narrow scope of protection.
Applicant has submitted printouts of eight third-party
registrations for marks that consist of or include THRASHER and
Ser No. 77509917
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printouts from various retail websites referring to “Thrasher” or
variants thereof. Id., Exhs. G and E.
The du Pont factor to be considered in this regard is “the
number and nature of similar marks in use on similar goods."11
Third-party registrations are not evidence of use of the marks
therein or that consumers have been exposed to them. See AMF
Inc. v. American Leisure Products, Inc., 474 F.2d 1403, 177 USPQ
268 (CCPA 1973). Further, none of the third-party registrations
submitted by applicant is for similar goods. Indeed, they are
all for very different goods, such as toy monster trucks, French
fried potatoes, yard trimmer equipment and fireworks, to name a
few. To the extent that third-party registrations would be
considered as a type of dictionary evidence, these registrations
for distinctly different goods can provide no support for a
finding that the term THRASHER has been commonly registered for a
particular meaning in the clothing field.
Several of the retail web pages submitted by applicant
arguably show use of THRASHER as a mark or part of a mark for
clothing or related services. The relevant websites are “Pearly-
Eyed Thrasher Tee Shirt” (zazzle.com); “Thrasher Clothing” (by
Johnny Thrasher) for a retail clothing store

11 Contrary to applicant’s contention in his brief (p. 21), the Board in
Morgan Creek Productions Inc. v. Foria International Inc., 91 USPQ2d
1134 (TTAB 2009) did not say or even suggest that “evidence of third-
party use of a mark even for unrelated goods/services may indicate the
relative weakness of the mark.”
Ser No. 77509917
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(thrasherclothing.com; and facebook.com); “Thrashers” for t-
shirts (zazzle.co.uk); “Metal Mulisha Thrasher Tee” (zappos.com);
Nike Thrasher Two-in-One Pre-School Boys’ T-Shirt”
(store.nike.com); “Pantera Kids Tee Thrasher”
(sourpussclothing.com).12
This handful of third-party uses is insufficient to show
that THRASHER is so extensively used in the clothing field that
consumers have learned to distinguish marks containing the term
THRASHER based on slight differences between them. Compare In re
Broadway Chicken Inc., 38 USPQ2d 1559, 1565 n.16 (TTAB 1996)
(“the magnitude of applicant's evidentiary record” with more than
575 entities using BROADWAY, showed that third-party use of the
term was so common that consumers would look to the other
elements of applicant's mark BROADWAY CHICKEN to distinguish
source).
Even when we consider, in addition to the third-party uses
of THRASHER, that the cited registrations are owned by two

12 The remaining websites are not probative. They are either for
dissimilar goods (“Quiksilver Thrasher Wallet” as shown on tactics.com;
and all of the websites in applicant’s Exh. F); or for dissimilar marks
(“Frog Thrash Guys” as shown on polyvore.com); or, in the context of
denim jeans, they appear to use “thrasher” as referring to either a cut
of jeans, or as a type of color or wash (e.g., thisnext.com,
neimanmarcus.com, and clothing-and-accessories.become.com, referring to
J Brand Jeans “Thrasher Tie-Dye Jeans” as “Thrasher cut in white/pale
blue tie dye”; and shop.nordstrom.com and couturecandy.com referring to
“Rich & Skinny Stretch Denim Boyfriend Shorts as “Thrasher Wash”). In
the advertisement for “A Skylit Drive – Thrasher Text Black – T -
Shirt” on smartpunk.com, “thrasher” appears to refer to a style of
print.
Ser No. 77509917
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different entities, this evidence is insufficient to demonstrate
common use or registration of THRASHER for clothing, or that the
term is “extremely diluted” and weak in relation to those goods,
as applicant contends.
Moreover, as we noted earlier, there is a consent agreement
between the owners of the cited registrations. Applicant argues,
quoting 3 J. McCarthy, McCarthy on Trademarks and Unfair
Competition, § 18:81 (4th ed. 1996 & Supp. 2008) (“a third party
may point to the consent as an admission...that a defined usage
is non-infringing”) and citing to certain cases referenced
therein, that the consent agreement “constitutes an admission
that the mark THRASHER is not confusingly similar to the mark
THRASHERS..., which indicates the extremely narrow scope of
protection of the Cited Marks.” Applicant maintains that the
consent agreement “indicates that THRASHER-inclusive marks for
clothing can and do co-exist in the relevant marketplace, and
that the owners of the Cited Registrations have affirmatively
represented to the PTO as much.” Brief, p. 22; Reply Brief, p. 8
(emphasis omitted).
Applicant’s arguments are without merit. The consent
agreement is evidence that the registrants’ marks can coexist in
the marketplace; it is not evidence that applicant’s mark, or for
that matter, any and all other third-party “THRASHER” marks, can
coexist with them. We note that the Federal Circuit rejected a
Ser No. 77509917
16
similar argument in In re Majestic Distilling Company, Inc., 315
F.23d 1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003). In that case,
the applicant (Majestic) argued that the owner of the cited
registration (Stroh) had entered into agreements with third
parties regarding use of the mark RED BULL. The Court stated:
...there has been no consent agreement executed
between Majestic and Stroh, only between Stroh and
third parties. ... [W]e agree that no presumption
can be made that Stroh consents to Majestic's use of
the mark or that Stroh has determined or admits that
confusion of the public by Majestic's concurrent use
of the mark is unlikely.

The consent agreement is evidence that confusion is
unlikely, not because the mark is weak as applicant contends, but
rather because of the restrictions in the agreement governing the
registrants’ marketing and use of their respective marks.
Applicant’s reliance on the cited section of McCarthy is
misplaced, and the cases referenced by applicant are not on
point. These were infringement cases or inter partes Board cases
involving one of the parties to the third-party agreement rather
than an ex parte appeal as we have here.13

13 The case of In re The Biltmore Company, Serial No. 75708354 (TTAB
March 27, 2002), a non-precedential decision which applicant claims is
“highly persuasive” is not binding on the Board and moreover differs
materially from the present case on its facts. Neither that case nor
any of the other cases cited by applicant involves facts analogous to
those herein or compels a finding that the marks and goods in this case
are not likely to cause confusion.
Ser No. 77509917
17
Other Facts in Evidence
Applicant argues that by virtue of his ownership of two
existing registrations that include the mark BENTHRASHER for
apparel, “[a]pplicant’s registration and use of the BENTHRASHER
mark is not likely to cause any confusion, as consumers are
equally, if not more, likely to associate Applicant’s BENTHRASHER
mark with Applicant’s BENTHRASHER family of marks, rather than
the CITED MARK.” Motion for Remand, p. 2.
Applicant’s registrations, which issued subsequent to the
three cited registrations, are shown below. They are both for
goods identified as “bottoms; tops,” in Class 25.
Registration No. 4023201 Registration No. 3826248
(issued September 6, 2011): (issued July 27, 2010):

Applicant’s “family of marks” argument is not well taken.
The determination of likelihood of confusion must be based on the
mark applicant seeks to register, not other marks applicant may
have registered. In re Cynosure Inc., 90 USPQ2d 1644, 1645 (TTAB
2009). See also In re Ald, Inc., 148 USPQ 520, 521 (TTAB 1965)
(“[T]he fact that applicant may possess a ‘family’ of marks...is
Ser No. 77509917
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of no particular significance herein if the mark for which
applicant now seeks registration...is confusingly similar to the
previously registered mark....”).
The mark in the present application is far more similar to
the marks in the cited registrations than applicant’s existing
registrations. Where BENTHRASHER is the entire mark in the
present application, other word and design elements feature more
prominently in applicant’s registrations, and those additional
elements add significantly to the commercial impression of the
marks as a whole. Indeed, the wording “BY BENTHRASHER” is barely
visible in the ‘201 registration.
In any event, the Board is not bound by the decisions of
examining attorneys in allowing those marks for registration. It
has been said many times that each case must be decided on its
own facts.14 See In re Nett Designs Inc., 236 F.3d 139, 57 USPQ2d
1564, 1566 (Fed. Cir. 2001) (“Even if prior registrations had
some characteristics similar to [applicant's] application, the
PTO's allowance of such prior registrations does not bind the
Board or this court.”).

14 We point out that this is not the “unique situation” presented in In
re Strategic Partners Inc., 102 USPQ2d 1397, 1400 (TTAB 2012) where the
Board found no likelihood of confusion in view of applicant’s existing
registration for a substantially similar mark and identical goods which
Ser No. 77509917
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Conclusion
In view of the similarity of the marks and because the
goods, as well as the trade channels and purchasers for the goods
are identical, we find that confusion is likely.

Decision: The refusal to register is affirmed.

had issued prior to and coexisted with the cited registration for over
five years.