Brooks Sports, Inc.v.Anta (China) Co., Ltd.

Trademark Trial and Appeal Board

Oct 24, 2017

No. 91223228 (T.T.A.B. Oct. 24, 2017)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: October 24, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Brooks Sports, Inc.
v.
Anta (China) Co., Ltd.

Opposition No. 91223228
_____

William C. Rava and Jonathon P. Goddard of Perkins Coie LLP,
for Brook Sports, Inc.

Christina M. Licursi and Ryan M. Van Olst of Wolf Greenfield & Sacks PC,
for Anta (China) Co., Ltd.
_____

Before Bergsman, Greenbaum and Gorowitz, Administrative Trademark Judges.

Opinion by Gorowitz, Administrative Trademark Judge:

This case involves different versions of chevron designs. A “chevron” is defined as
“a shape, pattern, or object in the form of a V or an upside-down V.”1

1 We take judicial notice of the definition of “chevron” from the Merriam Webster Dictionary,
"Chevron." Merriam-Webster.com. https://www.merriam-webster.com/ dictionary/chevron.

The Board may take judicial notice of dictionary definitions, including online dictionaries
that exist in printed format, In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB
2014), aff’d 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016)

Opposition No. 91223228
2

Anta (China) Co., Ltd. (“Applicant”) filed an application for the mark
for the following goods:
Overalls; smocks; linen garments, namely, shirts, pants, shorts,
blouses, skirts, coats, and jackets; sweaters; shirts; pants; shorts;
sweatshirts; dresses; clothing made of leather, namely, leather
pants, leather vests, leather shirts, leather jackets, leather shoes,
belts made of leather; suits; breeches; trousers; knitwear,
namely, knitted shirts, knitted tops, knitted sweaters, knitted
socks, knitted blouses, knitted pants, knitted skirts; coats; skirts;
pelisses; pullovers; frocks; overcoats; topcoats; jackets; parkas;
clothing of imitation leather, namely, pants made from imitation
leather, vests made from imitation leather, shoes made from
imitation leather, belts made of imitation leather; dust coats;
down clothes, namely, down vests, down jackets, down coats,
down pants, down shirts; children clothes, namely, headwear,
children's and baby cloth eating bibs, baby bodysuits, baby
pajamas, children's pajamas; sports jerseys; T-shirts; fishing
vests; vests; singlets; pajamas; dress shields; shoulder wraps;
collar protectors; shirt fronts; shirt yokes; cuffs; layettes; cyclists'
clothing, namely, cycling shorts, cycling shirts, cycling shoes;
clothing for gymnastics, namely, leotards, gymnastics shirts,
gymnastics pants, gymnastic shoes, gymnastic shorts; judogi,
namely, uniforms worn in the sport of judo; wrestling singlets;
raincoats; rain-cloaks; dance clothes, namely, leotards, leg
warmers, dance shoes, dance costumes, warm-ups, tights, body
suits; footwear; shoes; football shoes; gymnastic shoes; studs for
football boots; ski boots; jumping shoes; track shoes; mountain
climbing shoes; boots; sports shoes; boots for sports; tips for
footwear; inner soles; fittings of metal for shoes and boots;
footwear uppers; footwear vamps; gaiters; heelpieces for boots
and shoes; welts for boots and shoes; soles for footwear; insoles.
headwear; cap peaks; ear muffs; headbands; paper hats; non-
electric foot muffs; socks; sports socks; athletic socks; gloves;
muffs; shawls; scarves; belts; money belts; strap belts; waist
Opposition No. 91223228
3

strings for kimonos; fabric belts; sashes for wear; and wedding
gowns in International Class 25.2
Applicant entered the following description of the mark: “The mark consists of
curving intersecting lines forming half of an arrow.” Applicant’s mark can also be
described as a chevron. Color is not claimed as a feature the mark.
Brook Sports, Inc. (“Opposer”) opposed the application on the grounds of
likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d),
and dilution under Section 43(c) of the Trademark Act, 15 U.S.C. § 1125(c).
Specifically, Opposer pleaded ownership of two registrations shown below (“The
Brooks Marks”) consisting, in whole or in part, of a single flair chevron design:
3 and . 4
Applicant filed an answer denying all salient allegations.
This case has been fully briefed.

2 Application Serial No. 86268523 was filed on May 1, 2014 based upon Applicant’s allegation
of a bona fide intent to use the mark in commerce under Section 1(b) of the Trademark Act,
15 U.S.C. § 1051(b).

3 U.S. Registration No. 1683840 for the mark for “athletic
clothing; namely, shirts, pants, jackets, caps, shorts, tights and hosiery, and athletic
footwear,” which issued on April 21, 1992. Sheridan Test. and Exhibit 3 thereto, 27
TTABVUE 4; 246-247. Opposer first used this mark in 1987. Sheridan Test., 27 TTABVUE
4.
4 U.S. Registration No. 2750754 for the mark for “shoes, footwear, shirts,
pants, jackets, shorts, tights and T-shirts,” which issued on August 12, 2003. Id. Opposer
first used this mark in 2000. Id.
Opposition No. 91223228
4

The Record.
The record includes the pleadings, and by operation of Trademark Rule
2.122(b), 37 CFR § 2.122(b), the application file of the opposed application. In
addition, Opposer introduced the following evidence:
1. Testimony Declaration of Dan Sheridan, Opposer’s Executive Senior Vice
President, General Manager of North America and non-confidential
Exhibits 1-4, 6-9 and 11-18 (Sheridan Test.) (27 TTABVUE),5

2. Confidential Exhibits 5 and 10 to Sheridan Test. (28 TTABVUE); and
3. Rebuttal Testimony Declaration of Dan Sheridan and Exhibits
1-9 thereto (Sheridan Rebuttal Test.) (19 TTABVUE). 6
Applicant introduced:
- Redacted Notice of Reliance (App. NOR) (17 TTABVUE)
consisting of:
- Opposer’s responses to discovery requests (17
TTABVUE 7-34),

5 In his declaration, Mr. Sheridan noted Applicant’s ownership of prior registrations,
Registration Nos. 2750817 (issued August 12, 2003) and 4142897 (issued May 15, 2012) for
the mark for the mark for shoes and clothing. Opposer petitioned to cancel these
registrations on the ground of abandonment and ownership. The petitions are still pending.
Opposer requested the consolidation of this opposition with the cancellation actions but then
withdrew the request. These registrations demonstrate Applicant’s ownership of
registrations for a mark containing the design at issue in this opposition, dating back to
August 12, 2003.
6 Opposer also introduced a notice of reliance, however, no documents were attached to the
Notice. It is the responsibility of the party making submissions to the Board via the electronic
database to ensure that the testimony or evidence has, in fact, been properly made of record.
See Luxco, Inc. v. Consejo Regulador del Tequila, A.C., 121 USPQ2d 1477, 1506 n.195 (TTAB
2017); Weider Publ'ns, LLC v. D&D Beauty Care Co., 109 USPQ2d 1347, 1350-51 (TTAB
2014) (it is the duty of the party making submissions to the Board via the Board's electronic
filing system to ensure that they were entered into the trial record), appeal dismissed per
stipulation, No. 2014-1461 (Fed. Cir. Oct. 10, 2014).Therefore, we accord no evidentiary value
to the notice of reliance.
Opposition No. 91223228
5

- Pages from third-party websites (17 TTABVUE 35-75,
and
- Printouts of third-party registrations from the United
States Patent & Trademark Office Trademark Status &
Document Retrieval website (17 TTABVUE 76-152).
Standing.
Standing is a threshold issue that must be proven by a plaintiff in every inter
partes case. To establish standing in an opposition or cancellation proceeding, a
plaintiff must show “both a ‘real interest’ in the proceedings as well as a ‘reasonable
basis’ for its belief of damage.” Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753
F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014) (quoting ShutEmDown Sports,
Inc., v. Lacy, 102 USPQ2d 1036, 1041 (TTAB 2012)); Ritchie v. Simpson, 170 F.3d
1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton Industries, Inc. v. Ralston
Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982).
Because Opposer has made its pleaded registrations of record,7 Opposer has
established its standing in this proceeding. Cunningham v. Laser Golf Corp., 222 F.3d
943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); Lipton Industries, Inc., 213 USPQ at
189.
Priority.
Priority is not at issue with respect to the marks and goods in Opposer’s pleaded
registrations, which Opposer properly made of record with its notice of reliance. See

7 Sheridan Test., 27 TTABVUE 4.
Opposition No. 91223228
6

King Candy Co. v. Eunice King's Kitchen, 496 F.2d 1400, 182 USPQ 108 (CCPA 1974);
Toro Co. v. ToroHead Inc., 61 USPQ2d 1164, 1167 (TTAB 2001).

Likelihood of Confusion.
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, 567 (CCPA 1973);
see also Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772,
396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005); In re Majestic Distilling Co.,
315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In considering the evidence
of record on these factors, we keep in mind that “[t]he fundamental inquiry mandated
by § 2(d) goes to the cumulative effect of differences in the essential characteristics of
the goods and differences in the marks.” Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); see also In re Dixie Rests. Inc., 105
F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
1. Similarity or dissimilarity and nature of the goods, channels of
trade and class of purchasers.
We start our analysis with the second and third du Pont factors and look at the
relationship between the goods at issue, the channels of trade and the class of
purchasers. When determining the relationship between the goods,
[t]he 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 regardless of what the record
may reveal as to the particular nature of an applicant’s goods, the
particular channels of trade or the class of purchasers to which
sales of the goods are directed.
Opposition No. 91223228
7

Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d
1783, 1787 (Fed. Cir. 1990); see also Stone Lion Capital Partners, LP v. Lion Capital
LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-62 (Fed. Cir. 2014).
Applicant’s description of goods is in-part identical to the description of goods in
Opposer’s registrations since they all include “shoes, footwear, shirts, pants, jackets,
shorts, tights, and T-shirts.”
It is well established that absent restrictions in the application and registration,
identical goods are presumed to travel in the same channels of trade to the same class
of purchasers. See Octocom, 16 USPQ2d at 1787; Cunningham v. Laser Golf Corp., 55
USPQ2d at 1846 (affirming Board finding that where the goods are identical in part
and the identification is unrestricted, “we must deem the goods to travel in all
appropriate trade channels to all potential purchasers of such goods”).
Applicant “does not contest that the involved goods are identical in part, or that
the channels of trade or classes of consumers are overlapping …” Applicant’s Brief,
23 TTABVUE 7. Thus, it is not contested that the second and third du Pont factors
favor a finding of likelihood of confusion.
2. Fame of Opposer’s marks.
Opposer asserts that its marks are strong because they are famous. Opposer
refers to both of its marks as “Brooks Single-Flare Chevron Marks,” which it depicts
as:
Opposition No. 91223228
8

.

This depiction is of the design only mark, and ignores the fact that the other pleaded
mark also includes the word BROOKS with a non-identical chevron:
. Opposer refers to this mark as “a ‘classic’ formulation of the
Single-Flare Chevron mark used in combination with the company name. Brooks
first used this version of the Single-Flare Chevron mark in 1987.”8 Opposer refers
to its design only mark as “the ‘modern’ formulation of the Single-
Flair Chevron mark ... Brooks first used this version of the Single-Flare Chevron
mark in 2000.”9
To determine whether the design mark alone is famous or whether consumers
viewing the Brooks and design mark focus on the design
element when considering fame, we must look at Opposer’s use and promotion of its
marks.
Fame for confusion purposes arises as long as a significant portion of the relevant
consuming public … recognizes the mark as a source indicator.” Palm Bay Imps. Inc.,

8 Sheridan Test., par. 5, 27 TTABVUE 4.
9 Id.
Brooks Single-Flare Chevron Marks
Opposition No. 91223228
9

73 USPQ2d at 1695. The relevant consuming public consists of the “class of customers
and potential customers of a product or service, not the general public.” Id. at 1695.
Opposer defines its customers as “athletes desiring high-quality athletic shoes and
apparel.”10
Factors which are relevant to a determination of fame in a likelihood of confusion
analysis “include sales, advertising, length of use of the mark, market share, brand
awareness, licensing activities, and variety of goods bearing the mark.” Coach Servs.
Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1720 (Fed. Cir.
2012).
Opposer did not provide any sales figures, however, in his testimonial
declaration, Dan Sheridan, Opposer’s Executive Senior Vice President, General
Manager of North America, declared that “in part based on its business and
marketing strategies, between 2010 and 2015, Brooks revenue increased more than
127%.”11 Without specific information about sales, we cannot determine the extent of
Opposer’s revenue and how Brooks appears in comparison to other vendors of clothing
and footwear, or more specifically, vendors of athletic footwear and apparel. To
demonstrate the breadth of its products, Mr. Sheridan introduced Opposer’s 2015
footwear and apparel catalogs.12 However, in these catalogs the usage of Brooks’
design mark alone is minimal.

10 Id., par. 4, p. 3.
11 Id., par. 10, p. 7.
12 Id., par.4, p. 4, 12-131 and 133-210.
Opposition No. 91223228
10

Mr. Sheridan provided more extensive information about Opposer’s advertising
activities: “Brooks commenced national advertising decades ago, and Brooks
currently engages in nation-wide marketing and advertising. Brooks's promotional
activities incorporate print advertising; online advertising; outreach through
various social media platforms; and dynamic advertising, including sponsorship
of races and events. Brooks's - 2Q15 marketing budget in the United States was
approximately $32.5 million …”13 Marketing efforts included (1) print advertising
in national magazines with immense readership,14 such as Men’s Fitness,
Runners World and Shape Magazine; (2) operation of the website
www.brooksrunning.com;15 (3) active participation on popular social media
websites, including Facebook, Twitter, Instagram, YouTube and Pintrest, where
Brooks has had over “4.4 million fans, followers, subscribers, and the like”;16and
(4) “sponsorship of the prominent ‘Rock N’ Roll: Marathon Series held throughout
the United States and organizing the ‘PR Invitational’” … for high school runners
to compete in an Olympics-style, world class meet.17 Opposer introduced three
sample advertisements, none of which appear to have been distributed prior to
April 2016, which was two years after the May 1, 2014 filing date of the opposed
application:

13 Id., par. 9, pp. 5-6.
14 Opposer did not define “immense readership” or provide any readership statistics to assist
us in defining it.
15 Id., p. 6.
16 Id.
17 Id., par. 9, pp. 5-7.
Opposition No. 91223228
11

18
19

18 Runner’s World January/February 2017 issue, Id., par. 9a, pp. 6 and 289.
19 Men’s Fitness April 2016 issue, Id., par. 9a, pp. 6 and 288.

Opposition No. 91223228
12

20

Of note in all three of the advertisements is the prominence of a modified version
of the Brooks and design mark and that the only use of the design mark alone is as a
“footpath” with people running.21 In discussing the evolution of its design mark alone,
Brooks attested to the following:

20 Shape.com April 2016 issue, Id., par. 9a, pp. 6 and 290.
21 Which appears in Exhibits 16 and 17.
Opposition No. 91223228
13

By at least the year 1970, Brooks was using its “heritage”
chevron logo on shoes:

. Around the year 2000, Brooks began
using a chevron with softer edges, designed to look like a
running path with and without the oval background:
and . The more modern chevron (or
“path”) is meant to reflect the Brooks focus on running.22
Thus, the modified mark is meant to be a running path. There is no evidence that
consumers will recognize the running path in the advertisements as a chevron design
or, more specifically, as Opposer’s mark, especially because of the presence of runners
on the path which makes the chevron design appear simply as a trail.
From a corporate brand and market survey, Mr. Sheridan concluded that “Brooks
has # l market share for total retail dollars sold for the entire retail specialty channel
(a category that includes specialty running shops).”23 Mr. Sheridan did not
specifically define the “retail specialty channel.” To demonstrate “Brooks’s prominent
position,”24 Mr. Sheridan introduced a copy of a U.S. corporate brand and market
survey.25 No information was provided about the subjects of the survey, what was

22 Opposer’s Response to Interrogatory No. 1 of Applicant’s 1st Set of Interrogatories, App.
NOR, 17 TTABVUE 21.
23 Sheridan Test., par. 6, 27 TTABVUE 4.
24 Id.
25 Confidential Exhibit 5 to Sheridan Test., 28 TTABVUE 3
In view of the confidential nature of this exhibit, we will not discuss any specific information
revealed and will restrict our discussion to general information provided.
Opposition No. 91223228
14

asked, or where the survey was taken. The minimal information provided indicates
that that the class of the survey is “running”; the category is “performance”; and the
“sub channel” is “running specialty.”26 This appears to be a very narrow class of
products, however, without additional information, it is impossible to identify the
universe of the survey. The survey covered the following twelve month time periods:
December 2014 – November 2015 and December 2015 – November 2016.27 As such,
the only information provided is after Applicant’s prospective rights commenced, at
the filing of its application. Moreover, as with the advertisements discussed above,
there is no indication of the brand or brands that were included in the survey –
BROOKS, BROOKS and design, or design mark alone.
Based on the evidence introduced, we find that Opposer has not established that
its design mark alone is famous for likelihood of confusion purposes. Such finding
does not favor either party. Therefore, the fifth du Pont factor, fame of the mark, is
neutral.
3. Third-party use and registration of similar marks /Strength of
the marks.

The sixth du Pont factor requires us to consider evidence pertaining to the
number and nature of similar marks in use on similar goods. “The purpose of a
defendant introducing third-party uses it to show that customers have become so
conditioned by a plethora of such similar marks that consumers ‘have been educated
to distinguish between different such marks on the bases of minute distinctions.’”

26 Id.
27 Id.
Opposition No. 91223228
15

Palm Bay, 73 USPQ2d at 1691. In this case, while Applicant did not address the issue
of fame, Applicant did address the strength of Opposer’s marks, arguing that “[t]he
inherent strength of the Brooks Marks is minimal in light of the ornamental
significance of the chevrons in its mark for clothing and footwear.” Applicant’s Brief,
23 TTABVUE 17.
Third party registrations are relevant to prove that some
segment of the composite marks [or in this case a chevron
design] which both contesting parties use has a normally
understood and well recognized descriptive or suggestive
meaning, leading to the conclusion that that segment is
relatively weak. 2 McCarthy on Trademarks and Unfair
Competition § 11:90 (4th ed. 2017). Id.; see Tektronix, Inc.
v. Daktronics, Inc., 534 F.2d 915, 917, 189 USPQ 693, 694
(CCPA 1976) (even if ‘there is no evidence of actual use of
‘third-party registrations,’ such registrations ‘may be given
some weight to show the meaning of a mark in the same
way that dictionaries are used’).
Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675
(Fed. Cir. 2015). In this case, the dual significance of the marks, as both source
identifiers and ornamentation, is at issue in determining the strength of Opposer’s
marks.
As indicated above, the chevron used by Opposer is meant to be a running
path.28 Applicant describes its chevron design mark as “a design element featuring a
narrow angle consistent line width, sharp corners, and a prominent tip evoking an
arrow.” Applicant’s Brief, 23 TTABVUE 9. These marks consist of or contain different
versions of chevron designs. Applicant introduced twenty-five use based registrations

28 See fn. 22.
Opposition No. 91223228
16

for marks covering clothing that also consist of or contain different chevron designs
to establish that chevron design marks are commonly used in connection with
clothing and athletic shoes.
Representative samples of the registrations are:
Registration No. 1344540 for
Goods: Athletic shoes
Owner: Jeffrey A. Sink;29

Registration No. 1102189 for
Goods: Shoes
Owner: ABG-TRETORN, LLC;30

Registration No. 4996346 for
Goods: Jeans
Owner: Seven for All Mankind GMBH;31 and

Registration No. 4996346 for
Goods include: Headwear, footwear, pants, jackets and
shirts
Owner: W.L. Gore & Associates.32

29 App. NOR, 17 TTABVUE 135-136
30 App. NOR, 17 TTABVUE 137-145.
31 App. NOR, 17 TTABVUE 76-77.
32 App. NOR, 17 TTABVUE 99-100.
Opposition No. 91223228
17

Applicant also introduced Internet evidence of eight different “chevron” marks
used on athletic shoes, examples of which include:

AliExpress33

Converse34

Diadora35
Hi-Tec36

Clarks37
These registrations and examples of Internet use evidence the common use of
chevron designs in the clothing and athletic shoe fields. Such common use indicates
that consumers have become conditioned to encountering chevron designs in
connection with clothing and athletic shoes, and that they will focus on other features

33 www.aliexpress.com - Applicant’s notice of reliance, 17 TTABVUE 4.
34 store.nike.com, Id., p. 3.
35 www.diadora.com, Id.
36 www.us.high-tec.com, Id.
37 www.clarksusa.com.com, Id.
Opposition No. 91223228
18

to determine source. Thus, the sixth du Pont factor, the number and nature of similar
marks in use on similar goods, does not favor a finding of likelihood of confusion.
4. Similarity or dissimilarity of the marks.
Next, we analyze the first du Pont factor to determine the similarity or
dissimilarity of the marks at issue. The two marks asserted by Opposer are different
and require separate analysis.
The first of Opposer’s two marks, which it has used since 1987, consists of the
word BROOKS and a chevron design .38 To determine
whether this mark is similar to Applicant’s chevron design mark
we compare them “in their entireties as to appearance, sound, connotation and
commercial impression.” Palm Bay Imports Inc., 73 USPQ2d at 1691 (quoting du
Pont, 177 USPQ at 567). “[I]t is improper to dissect a mark when engaging in this
analysis, including when a mark contains both words and a design.” Jack Wolfskin
Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797
F.3d 1363,116 USPQ2d 1129, 1134 (Fed. Cir. 2015) citing In re Viterra Inc., 671 F.3d
1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012). However, the verbal portion of the
mark is the one most likely to indicate the origin of the goods to which it is affixed
because it would be used to request the goods. See In re Viterra Inc., 101 USPQ2d at

38 Sheridan Test., par. 5, 27 TTABVUE 4.
Opposition No. 91223228
19

11908 1905 citing CBS Inc. v. Morrow, 708 F.2d. 1579, 128 USPQ 198 (Fed. Cir. 1983).
See also L.C. Licensing Inc. v. Berman, 86 USPQ2d 1883, 1887 (TTAB 2008).
The facts in this case are similar to those in the Jack Wolfskin case, 116 USPQ2d
1129. As in Jack Wolfskin, when the appropriate emphasis is placed on the dominant
literal portion of Opposer’s mark, we find that the marks are not similar. Next, we
look at Opposer’s chevron design mark, to determine whether this
mark is similar to Applicant’s chevron design mark, . Since the marks
at issue are design marks which are not capable of being spoken, “the question of …
similarity … must be determined primarily on the basis of their visual similarity.” In
re Vienna Sausage Mfg. Co., 16 USPQ2d 2044, 2047 (TTAB 1990). While there are
visual similarities between the marks, the marks consist of different representations
of chevron designs, with Opposer’s design representing a running path and
Applicant’s design representing the tip of an arrow. Because chevron designs are
commonly used, in whole or in part, as marks in connection with clothing and
footwear, we find that the dissimilarities in the marks outweigh the similarities and
thus, we find that the marks are not similar.
Therefore, based on our analysis of both of Opposer’s marks with Applicant’s
mark in their entireties, we find that the marks are not similar and that the first du
Pont factor does not support a holding of likelihood of confusion.

Opposition No. 91223228
20

5. Balancing the factors.
While we have found that that the goods are in part identical, the channels of
trade and the customers are identical, and that the pleaded marks are not famous,
we find that there are significant differences between Opposer’s marks and
Applicant’s mark, particularly in their commercial impressions. In addition, chevron
designs are used in many similar ways in the marketplace for clothing and athletic
shoes, and therefore a chevron design is not a strong source identifier for those goods.
On a similar record, the Board in Puma-Sportschuhfabriken Rudolf Dassler, K.G. v.
Superga S.p.A., 204 USPQ 688 (TTAB 1979) held that even with over twenty-years
of use of a design mark, an increase in sales of over 120% in a nine year period (from
1968 to 1976), and extensive advertising, third-party use of similar marks rendered
Opposer’s mark weak, which was sufficient to avoid a finding of likelihood of
confusion.
In this case, we have considered all the evidence and arguments on the relevant
du Pont factors, whether discussed or not, and we conclude that there is no likelihood
of confusion between Applicant’s chevron design mark for numerous
articles of clothing, including “shoes, footwear, shirts, pants, jackets, shorts, tights,
and T-shirts,” and Opposer’s marks BROOKS and design
“for “athletic clothing; namely, shirts, pants, jackets, caps, shorts, tights and hosiery,
Opposition No. 91223228
21

and athletic footwear” and the design mark for “shoes, footwear, shirts,
pants, jackets, shorts, tights and T-shirts.”
Dilution.
Since Opposer’s pleaded marks do not meet not meet the standard for
establishing fame for likelihood of confusion purposes, they do not meet the more
stringent standard for establishing fame for dilution purposes. Accordingly, the
dilution claim is dismissed.
Decision: The opposition is dismissed on both grounds.