Big Time Holdings, Inc.

Trademark Trial and Appeal Board

Mar 29, 2012

No. 85057799 (T.T.A.B. Mar. 29, 2012)

Mailed: 3/29/12

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Big Time Holdings, Inc.
________

Serial No. 85057799
_______

Robert S. Beiser of Vedder Price for Big Time Holdings,
Inc.

Kapil K. Bhanot, Trademark Examining Attorney, Law Office
108 (Andrew Lawrence, Managing Attorney).
_______

Before Quinn, Grendel and Wolfson,
Administrative Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:

Big Time Holdings, Inc. filed, on June 8, 2010, an
intent-to-use application to register the mark BLIZZARD (in
standard characters) for “gloves” (in International Class
25). The application includes a statement of ownership of
Registration No. 3121623, issued July 25, 2006, of the mark
SAFETY BLIZZARD (in standard characters) for “protective
work gloves” (in International Class 9); and Registration
No. 3177825, issued November 28, 2006, of the mark BLIZZARD
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Ser. No. 85057799
2
(in standard characters) for “protective work gloves” (in
International Class 9).
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act, 15 U.S.C. §
1052(d), on the ground that applicant’s mark, when applied
to applicant’s goods, so resembles the previously
registered marks BLIZZARD (in standard characters) and

both for “clothing, namely hats and shirts” (in
International Class 25),1 as to be likely to cause
confusion. The registrations are owned by the same entity.
When the refusals were made final, applicant appealed.
Applicant and the examining attorney filed briefs.
Applicant states that examining attorneys “often focus
to the detriment of common sense on the similarity of the
marks at issue” and that the Board “routinely reverses
[examining attorneys] who try forcibly to find similarity
of goods and a likelihood of confusion simply because they

1 Registration No. 2433353, issued March 6, 2001, and
Registration No. 2440620, issued April 3, 2001, respectively.
Both registrations have been renewed.
Ser. No. 85057799
3
fall prey to identical looking marks.” (Brief, p. 4).
Although applicant acknowledges that the marks are
identical in appearance, applicant argues that they have
different connotations, namely that “BLIZZARD in the
context of gloves suggests a resistance to cold, but
BLIZZARD in the context of video games suggests chaos and
destruction.” (Brief, p. 13). Applicant concentrates its
arguments on a comparison between the goods, contending
that they are different, and that the examining attorney’s
evidence falls short of showing a sufficient relationship
between them; applicant asserts that to show a relationship
between gloves, hats and shirts “something more” is
required than just the fact that they are clothing items.
Applicant also points to the fact that registrant is a
video games designer, and that registrant’s customers “are
sophisticated as to their capacity to distinguish and
purchase goods from Registrant and not from others.”
(Brief, p. 7). Further, applicant relies upon its
ownership of existing registrations covering “protective
work gloves” and the doctrine of natural expansion,
claiming that it “is entitled by law to prevent Registrant
from getting registration [of] BLIZZARD for gloves or non-
protective work gloves” and that applicant, not registrant,
“is entitled by law to use BLIZZARD for gloves.” (Brief,
Ser. No. 85057799
4
p. 12). In this connection, applicant highlights the
coexistence for over five years of its earlier
registrations with the cited registration. In support of
its arguments, applicant submitted copies of third-party
registrations of BLIZZARD marks, and additional
registrations owned by registrant.
The examining attorney maintains that the marks are
identical or substantially similar, and that the goods are
related. In response to applicant’s argument regarding
registrant’s actual use of the mark in connection with
promotion of registrant’s video games design business, the
examining attorney considers the argument to be a
collateral attack on the cited registration. The examining
attorney introduced copies of third-party registrations and
excerpts of third-party websites to show that the goods are
related and move in the same trade channels.
Before turning to the substantive merits of the
appeal, we direct our attention to two evidentiary matters.
Firstly, the examining attorney, in his brief, requested
that the Board take judicial notice of the dictionary
definition of the word “blizzard.” The request is granted.
Secondly, the examining attorney has objected to some of
the evidence attached and/or presented in applicant’s
appeal brief on the basis of untimeliness. Applicant’s
Ser. No. 85057799
5
reply brief is silent regarding these objections.
Trademark Rule 2.142(d) provides that the record in the
application should be complete prior to the filing of an
appeal. The copies of the third-party registrations of
STAR WARS marks (Exhibit D), submitted for the first time
with the appeal brief, are untimely and, thus, are not
properly before us for consideration. In addition, the
link to the YouTube website (showing a video posted by a
third-party about registrant’s shirts) is untimely and has
not been considered.2
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re 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 between the marks and the similarities between
the goods and/or services. See Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA
1976).
In comparing the marks, we must consider the marks in

2 We hasten to add, however, that even if considered, this
additional evidence would not be persuasive of a different result
on the merits of this appeal.
Ser. No. 85057799
6
their entireties as to appearance, sound, connotation and
commercial impression to determine the similarity or
dissimilarity between them. Palm Bay Imports, Inc. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689 (Fed. Cir. 2005). The test, under the
first 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 impression that confusion
as to the source of the goods offered under the respective
marks is likely 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).
We will focus on the cited mark BLIZZARD in standard
character form because, of the two cited marks owned by
registrant, this mark is closest to applicant’s mark. This
mark is identical to applicant’s mark in sound and
appearance. Applicant contends that the marks have
different meanings, making reference to the nature of
applicant’s video games design business. The word
“blizzard’ means “a storm with a lot of snow and strong
winds.” (www.macmillandictionary.com). Applicant argues
Ser. No. 85057799
7
that “BLIZZARD in the context of gloves suggests resistance
to cold, but BLIZZARD in the context of video games
suggests chaos and destruction.” (Brief, p. 13). The
problem with applicant’s contention is that registrant’s
goods are not video games, but rather hats and shirts.
Thus, we see no meaningful distinction on the basis of
meaning of the term “blizzard” in connection with the
identified goods. In sum, the identity between the marks
compels us to conclude that the marks engender the same
overall commercial impression.
The identity between the marks is a du Pont factor
that weighs heavily in favor of a finding of likelihood of
confusion.
In connection with the similarity between the marks
and its contention that the scope of protection of the
cited registrations is limited, applicant submitted copies
of over two dozen third-party registrations of BLIZZARD
marks covering a wide range of products. Although we have
considered applicant’s evidence, it is of limited probative
value to support applicant’s position because “[t]he
existence of [third-party] registrations is not evidence of
what happens in the market place or that consumers are
familiar with them nor should the existence on the register
of confusingly similar marks aid an applicant to register
Ser. No. 85057799
8
another likely to cause confusion, mistake or to deceive.”
AMF Inc. v. American Leisure Products, Inc., 474 F.2d 1403,
177 USPQ 268, 269 (CCPA 1973); and In re Max Capital Group
Ltd., 93 USPQ2d 1243, 1248 (TTAB 2010). Moreover, in the
present case, none of the registrations covers goods in the
clothing field; the registrations cover far different
goods, ranging from wheel chairs to electric fans to
snowmobiles. These registrations for goods unrelated to
the goods at issue are irrelevant to our analysis. See In
re Melville, 18 USPQ2d 1386, 1388-89 (TTAB 1991).
In sum, the existence of these third-party
registrations of BLIZZARD marks for goods far removed from
the clothing field does not diminish the distinctiveness of
the cited mark BLIZZARD. This factor is neutral in the du
Pont analysis.
As to the goods, it is well settled that the question
of likelihood of confusion must be determined based on an
analysis of the goods recited in applicant’s application
vis-à-vis the goods identified in the cited registration.
In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 n.
4 (Fed. Cir. 1993); and Canadian Imperial Bank v. Wells
Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1783 (Fed. Cir. 1992).
Where the goods in the application at issue and/or in the
cited registration are broadly identified as to their
Ser. No. 85057799
9
nature and type, such that there is an absence of any
restrictions relating to the channels of trade and no
limitation relating to the classes of purchasers, it is
presumed that in scope the identification of goods
encompasses not only all the goods of the nature and type
described therein, but that the identified goods are
offered in all channels of trade which would be normal
therefor, and that they would be purchased by all potential
buyers thereof. In re Elbaum, 211 USPQ 639, 640 (TTAB
1981).
In considering this du Pont factor, we especially note
that where identical marks are involved, as is the case
here, the degree of similarity between the goods that is
required to support a finding of likelihood of confusion
declines. In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1688-1689 (Fed. Cir. 1993) (“even when the goods or
services are not competitive or intrinsically related, the
use of identical marks can lead to the assumption that
there is a common source”); Time Warner Entertainment Co.
v. Jones, 65 USPQ2d 1650 (TTAB 2002); and In re Opus One
Inc., 60 USPQ2d 1812 (TTAB 2001). It is only necessary
that there be a viable relationship between the goods to
support a finding of likelihood of confusion. In re
Concordia International Forwarding Corp., 222 USPQ 355, 356
Ser. No. 85057799
10
(TTAB 1983). The issue here, of course, is not whether
purchasers would confuse the goods, but rather whether
there is a likelihood of confusion as to the source of
these goods. In re Rexel Inc., 223 USPQ 830 (TTAB 1984).
In considering this second du Pont factor, it also should
be noted that there is no per se rule governing likelihood
of confusion cases involving all types of wearing apparel.
See In re British Bulldog, Ltd., 224 USPQ 854 (TTAB 1984).
However, in numerous cases in the past, many different
types of apparel have been found to be related products
which are sold in the same trade channels to the same
classes of purchasers, including to ordinary consumers, and
that confusion is likely to result if the goods were to be
sold under similar marks.3
With respect to the relatedness of the goods, the
examining attorney introduced eleven use-based third-party

3 See, e.g., Cambridge Rubber Co. v. Cluett, Peabody & Co., 286
F.2d 623, 128 USPQ 549 (CCPA 1961) (women’s boots related to
men’s and boys’ underwear); Jockey Int’l, Inc. v. Mallory &
Church Corp., 25 USPQ2d 1233 (TTAB 1992) (underwear related to
neckties); In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991)
(women’s pants, blouses, shorts and jackets related to women’s
shoes); In re Pix of America, Inc. 225 USPQ 691 (TTAB 1985)
(women’s shoes related to outer shirts); In re Mercedes Slacks,
Ltd., 213 USPQ 397 (TTAB 1982) (hosiery related to trousers); In
re Cook United, Inc., 185 USPQ 444 (TTAB 1975) (men’s suits,
coats, and trousers related to women’s pantyhose and hosiery);
and Esquire Sportswear Mfg. Co. v. Genesco Inc., 141 USPQ 400
(TTAB 1964) (brassieres and girdles related to slacks for men and
young men).
Ser. No. 85057799
11
registrations, each showing a mark registered for gloves
and hats and/or shirts.4 “Third-party registrations which
cover a number of differing goods and/or services, and
which are based on use in commerce, although not evidence
that the marks shown therein are in use on a commercial
scale or that the public is familiar with them, may
nevertheless have some probative value to the extent that
they may serve to suggest that such goods or services are
of a type which may emanate from a single source.” In re
Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB
1988), aff’d, 864 F.2d 149 (Fed. Cir. 1988). See also In
re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB
1993).
In addition, the examining attorney introduced
excerpts of two online retailers showing that in at least
five instances gloves and shirts were being offered for
sale under the same marks (REI, ASICS, MOUNTAIN HARDWEAR,
UNDER ARMOUR and ROAD RUNNER SPORTS).
We find that the examining attorney’s evidence shows a
sufficient relationship between gloves, hats, and shirts
such that, if sold under the identical mark, consumers in

4 The examining attorney indicates that the registrations are not
“exhaustive,” but rather “a relevant sample of the evidence
available.” (Brief, unnumbered p. 11).
Ser. No. 85057799
12
the marketplace would be likely to be confused.
Applicant’s main argument relating to the similarity
of the goods factor is that registrant’s hats and shirts
are collateral items to registrant’s video games design
business, and that fans of these games will know when they
are buying a shirt from registrant, and when they are not.
Applicant argues that “[r]egistrant’s clothing is
paraphernalia sold in support of games and generally all
shirts sold by video game designers including registrant
include highly distinctive pictures” and that “Blizzard
Entertainment customers will not buy from Registrant a
blank shirt where the mark BLIZZARD is written on a label.”
(Brief, p. 13). In this connection, applicant timely
submitted excerpts from registrant’s website, specifically
contending that because registrant is “one of the leaders
in beautiful graphic games directed primarily at
teenagers,” (Brief, p. 7), consumers are sophisticated and
will know with whom they are dealing.
The problem with this type of argument is that, as
indicated earlier, the comparison of the goods in our
likelihood of analysis must be based on the goods as
identified in the registration, and not on evidence that
illustrates the goods for which registrant may actually use
Ser. No. 85057799
13
its mark.5 Inasmuch as the identification does not limit
registrant’s goods to collateral clothing items to promote
registrant’s video games design, we must presume, contrary
to applicant’s argument and evidence related thereto, that
the clothing includes ordinary items that will be worn by
anyone, not just “fans” of registrant’s games. Thus,
applicant’s attempt to impermissibly limit registrant’s
recited goods by extrinsic evidence is unavailing. In re
Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986).6
Given that there are no restrictions relating to trade
channels and purchasers, the goods of both applicant and
registrant are presumed to travel in the normal trade
channels for such goods, such as clothing stores,
boutiques, clothing sections of department stores, and the
like. Further, as identified in the application and the
registration, the goods would be purchased by the same

5 Applicant’s “common sense” argument (Reply Brief, pp. 7-8),
based on “real world” facts surrounding registrant’s actual use,
is more properly made in the context of an infringement action
than in a Board proceeding determining registrability. See TBMP
§ 102.01 (3d ed. 2011).

6 The examining attorney characterized applicant’s argument as
constituting an “impermissible collateral attack” on the cited
registration. We do not see it as much as a collateral attack
(as in the case of an applicant’s contending that the cited
registration has been abandoned) as an impermissible attempt to
limit the scope of the registration’s identification of goods
with extrinsic evidence. Cf. In re Dixie Rests., Inc., 105 F.3d
1405, 41 USPQ2d 1531, 1534-35 (Fed. Cir. 1997).
Ser. No. 85057799
14
classes of purchasers, including ordinary consumers who
would exercise nothing more than ordinary care in making
their purchase.
The similarity between the goods, and the identity in
trade channels and purchasers are factors that weigh in
favor of a finding of a likelihood of confusion.
Applicant also argues that the relatedness of clothing
items may not be assumed, and that the examining attorney’s
evidence must show “something more” than simply that
similar marks are used on clothing items. We are aware, of
course, of the utilization of this requirement in cases
involving food and beverage products versus restaurant
services. See, e.g., In re Coors Brewing Co., 343 F.3d
1340, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003); and In re Opus
One Inc., 60 USPQ2d 1812, 1814-16 (TTAB 2001). We are not
aware, however, of any cases wherein the “something more”
requirement has been extended outside of these types of
cases and, indeed, applicant has not cited any such cases
involving clothing. To reiterate, we find that the
examining attorney’s evidence in the present case
establishes a sufficient relationship between the goods.
We also are not persuaded by applicant’s argument
grounded on its ownership of registrations of the marks
BLIZZARD and SAFETY BLIZZARD for “protective work gloves.”
Ser. No. 85057799
15
By now seeking registration of the mark BLIZZARD for
“gloves,” applicant is seeking to broaden the scope of its
protection to cover a wider range of products, that is,
gloves of all types. Thus, applicant’s argument is not
persuasive to allow the registration sought herein. In re
Loew’s Theatres, Inc., 769 F.2d 764, 226 USPQ 865, 869
(Fed. Cir. 1985) (“Nothing in the statute provides a right
ipso facto to register a mark for additional goods when
items are added to a company’s line or substituted for
other goods covered by a registration. Nor do the PTO
rules afford any greater rights...”); In re SL&E Training
Stable, Inc., 88 USPQ2d 1216, 1219-20 (TTAB 2008); and In
re Sunmarks Inc., 32 USPQ2d 1470, 1472 (TTAB 1994).
In connection with this argument, applicant further
contends that its prior registrations and the cited
registration have peacefully coexisted for at least five
years, “a strong indication of continued peaceful
cohabitation.” (Brief, p. 13). The situation relied upon
by applicant may be due to the fact that applicant’s
registrations cover “protective work gloves,” a specific
type of item. As just indicated, by its present
application applicant is attempting to expand its
registration rights to cover all types of gloves. Thus,
the coexistence of applicant’s prior registration with the
Ser. No. 85057799
16
cited registration is entitled to little weight. See In re
Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1205 (Fed. Cir. 2003) (“uncorroborated statements of
no known instances of actual confusion are of little
evidentiary value”). See also In re Bisset-Berman Corp.,
476 F.2d 640, 177 USPQ 528, 529 (CCPA 1973) (stating that
self-serving testimony of applicant’s corporate president’s
unawareness of instances of actual confusion was not
conclusive that actual confusion did not exist or that
there was no likelihood of confusion). In any event, the
lack of evidence of actual confusion carries little weight,
J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 144
USPQ 435, 438 (CCPA 1965), especially in an ex parte
context. Moreover, the record is devoid of probative
evidence relating to the extent of use of registrant’s and
applicant’s registered marks and, thus, whether there have
been meaningful opportunities for instances of actual
confusion to have occurred in the marketplace. See
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d
1842, 1847 (Fed. Cir. 2000); and Gillette Canada Inc. v.
Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992).
Accordingly, the du Pont factor of the length of time
during and conditions under which there has been
Ser. No. 85057799
17
contemporaneous use without evidence of actual confusion is
considered neutral.
Applicant also argues that registrant’s customers are
not impulsive ones, but rather are fans of registrant’s
video games and, thus, less likely to be confused. Again,
there is no limitation in registrant’s identification of
goods regarding either the specific types of hats and
shirts or the classes of purchasers. Thus, as noted
earlier, we presume that registrant’s customers include all
ordinary consumers, not just those who are familiar with or
are fans of registrant’s video games. Even assuming that
relevant consumers are sophisticated, this fact does not
necessarily mean that they are immune from source
confusion. In re Shell Oil Co., 26 USPQ2d at 1690.
We have carefully considered all of the evidence made
of record pertaining to the issue of likelihood of
confusion, as well as all of the arguments related thereto,
including any evidence and arguments not specifically
discussed in this opinion. We conclude that consumers
familiar with registrant’s hats and shirts sold under the
mark BLIZZARD (in standard characters) would be likely to
mistakenly believe, upon encountering applicant’s identical
mark BLIZZARD (in standard characters) for gloves, that the
Ser. No. 85057799
18
goods originated from or are associated with or sponsored
by the same entity.
Lastly, to the extent that any of the points raised by
applicant raise a doubt about likelihood of confusion, that
doubt is required to be resolved in favor of the prior
registrant. In re Hyper Shoppes (Ohio), Inc., 837 F.2d
840, 6 USPQ2d 1025 (Fed. Cir. 1988); and In re Martin’s
Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289
(Fed. Cir. 1984).
Decision: The refusal to register is affirmed.