J & K Performance Boats, LLC

Trademark Trial and Appeal Board

Jul 29, 2016

No. 86524364 (T.T.A.B. Jul. 29, 2016)

Mailed: July 29, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
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In re J & K Performance Boats, LLC
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Serial No. 86524364
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Matthew H. Swyers of The Trademark Co. PLLC for J & K Performance Boats LLC.

Edward Nelson, Trademark Examining Attorney, Law Office 106 (Mary I. Sparrow,
Managing Attorney).
_______

Before Cataldo, Wolfson and Greenbaum,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Applicant, J & K Performance Boats, LLC, filed an application, as amended, to
register on the Principal Register COBRA BASS BOATS (in standard characters,
with “BASS BOATS” disclaimed) as a mark for “boats, namely, bass boats” in
International Class 12.1

1 Application Serial No. 86524364 was filed on February 4, 2015 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s assertion of its bona fide intent
to use the mark anywhere and in commerce.
Subsequent to appeal, Applicant requested remand of its application to the Examining
Attorney for consideration of its amendment of the identification of goods from “boats” to
“boats, namely, bass boats.” (4 TTABVUE). The Examining Attorney approved the
amendment but maintained the finality of the refusal of registration that is the subject of
this appeal. (6 TTABVUE; 7 TTABVUE).
This Opinion is not a
Precedent of the TTAB
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The Trademark Examining Attorney refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d) on the ground of likelihood of confusion with the
mark COBRA KAYAKS (in standard characters, with “KAYAKS” disclaimed)
previously registered on the Principal Register for “kayaks,” in International Class
12.2
When the refusal was made final, Applicant appealed. We affirm the refusal of
registration.
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 (CCPA 1973). See also
In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003).
In any likelihood of confusion analysis, two key, though not exclusive, 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). See also In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531 (Fed. Cir. 1997).
The Marks
We turn to the first du Pont factor, i.e., whether Applicant’s COBRA BASS BOATS
mark and Registrant’s COBRA KAYAKS mark, both in standard characters, are

2 Registration No. 2037599 issued on February 11, 1997. Section 8 affidavit accepted; Section
15 affidavit acknowledged. Renewed.
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similar or dissimilar when viewed in their entireties in terms of appearance, sound,
connotation and overall commercial impression. Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 1321, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014)
(quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772,
396 F. 3d 1369, 1371, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)). We note initially that
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 or services 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).
In comparing Applicant’s mark and Registrant’s mark, we note that the marks are
similar to the extent that the first word of Applicant’s mark, “COBRA” is identical to
the first word of Registrant’s mark in appearance, meaning and sound. The marks
are dissimilar with respect to their second terms, “BASS BOATS” and “KAYAKS.”
Both latter terms are disclaimed and appear to be highly descriptive, if not generic,
as applied to the goods at issue. In contrast, there is no evidence that the term
“COBRA” has any significance as applied to either bass boats or kayaks. We thus find
that “COBRA” is the dominant and sole distinctive element of both Applicant’s mark
and the cited mark, and accordingly it is entitled to more weight in our analysis. It is
a well-established principle that, in articulating reasons for reaching a conclusion on
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the issue of likelihood of confusion, 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 a consideration of the marks in their
entireties. In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985).
Furthermore, the significance of the word “COBRA” is reinforced by its location as
the first word of Applicant’s mark and Registrant’s mark. Presto Products Inc. v. Nice-
Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a
mark which is most likely to be impressed in the mind of a purchaser and
remembered”). See also Century 21 Real Estate Corp. v. Century Life of America, 970
F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks,
consumers must first notice the identical lead word). In addition, consumers are often
known to use shortened forms of names, and it is highly likely that both Applicant
and Registrant and their goods are referred to as “COBRA.” Cf. In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 219 (CCPA 1978) (Rich, J.,
concurring: “the users of language have a universal habit of shortening full names –
from haste or laziness or just economy of words”).
As a result, when the marks COBRA BASS BOATS and COBRA KAYAKS are
viewed in their entireties, they are more similar than dissimilar in appearance and
sound and convey a similar connotation, namely, that Applicant’s COBRA BASS
BOATS and Registrant’s COBRA KAYAKS are variations on each other, but point to
a common source. Similarity in any one of the elements of sound, appearance,
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meaning, or commercial impression is sufficient to support a determination of
likelihood of confusion. See Krim-Ko Corp. v. The Coca-Cola 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”); In re White Swan Ltd., 8 USPQ2d 1534,
1535 (TTAB 1988). In view of the foregoing, we find that the similarities in the marks
outweigh the differences, and that this du Pont factor also weighs in favor of a finding
of likelihood of confusion.
Similarities Between the Goods
We next compare Applicant’s goods with those of Registrant. In making our
determination under the second du Pont factor, we look to the goods as identified in
the involved application and cited registration. See Octocom Systems, Inc. v. Houston
Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. 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
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 the sales
of goods are directed.”). See also Paula Payne Products v. Johnson Publishing Co.,
473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973) (“Trademark cases involving the issue
of likelihood of confusion must be decided on the basis of the respective descriptions
of goods.”).
In this case, Applicant’s goods are identified as “boats, namely, bass boats” and
Registrant’s goods are identified as “kayaks.” In support of his argument that the
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goods are related, the Examining Attorney made of record the following definition of
“kayak” – “a very light, slender, usually covered boat that has pointed ends and is
propelled by a double-bladed paddle.”3 The Examining Attorney further made of
record a reference from an open source Internet encyclopedia for the term “bass boat”
– “A bass boat is a small [power] boat that is designed and equipped primarily for
bass fishing or fishing for other panfish, usually in freshwater such as lakes, rivers
and streams.”4 Thus, as identified, bass boats and kayaks are different types of small
boats.
In addition, the Examining Attorney, in support of his contention that the goods at
issue are commercially related, has made of record examples of Internet web pages
from third-party e-commerce sites offering goods similar in nature to those of both
Applicant and Registrant. Among these, we note the following:5
- the website at bassresource.com offers products including bass boats and
kayaks.

- the website at overstock.com offers products including kayaks and various
types of small row boats.

- the website at costco.com offers products including kayaks and various types
of small boats, including paddle boats, fishing boats and row boats.

These websites demonstrate that goods of the type offered by both Applicant and
Registrant are marketed and sold together online, in some cases under the same

3 August 10, 2015 final Office action at 7. Ahdictionary.com.
4 Id. at 5. Wikipedia.org. We have considered this Wikipedia evidence because it essentially
is cumulative of and is corroborated by the other evidence of record, and because Applicant
made of record the same reference. Applicant’s July 19, 2015 communication at 19.
5 August 10, 2015 first Office Action at 9-25.
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marks. We find that customers would readily perceive both types of goods as being
within a single category of goods.
The Examining Attorney further made of record excerpts from the results of his
search of the Google Internet search engine for kayaks used for bass fishing.6 The
following photograph is illustrative:

This evidence shows that various types of kayaks are used for fishing.7
The Examining Attorney also made of record the following use-based, third-party
registration listing, in its identification of goods, both kayaks and boats, which are
broadly identified and presumed to include Applicant’s “bass boats:”

6 December 2, 2015 denial of Applicant’s request for reconsideration at 3-15.
7 In addition, with his May 12, 2015 first Office action at 17, the Examining Attorney made
of record third-party Registration No. 4648163 identifying goods that include “fishing kayak
accessories, fishing kayak anchor trolley, fishing kayak rudder, fishing kayak flush mount
rod holder, fishing kayak rod leash.”
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Registration No. 3992945 recites goods including boat hulls; boats; boats
and structural parts therefor; canoes; kayak-like boats; kayaks;
recreational watercraft, namely, oar and paddle powered boats.

Such a third-party registration that is based on use in commerce has some probative
value to the extent that it suggests that the listed goods are of types which may
emanate from the same source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783,
1785-1786; In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB
1988). Although such registration does not prove that the registered mark is actually
used in the marketplace on both boats and kayaks, it at least demonstrates that a
company has sought and obtained registration of this mark for use on both types of
goods.
Applicant argues that
In the instant matter, Applicant provides bass boats. To the contrary,
the registered trademark provides kayaks. Within this context, these
differ insofar as bass boats are powered low-hulled vehicles typically
used on inland lakes. Kayaks, in the alternative, are non-motorized
boats typically used on rivers and streams.8

Applicant is correct that bass boats are engine-powered boats versus kayaks that are
propelled by paddling. However, the evidence of record demonstrates that both bass
boats and kayaks may be used for fishing, and also are sold by the same Internet
retailers, in some instances under the same mark. Furthermore, neither Applicant’s
goods nor Registrant’s goods recite any of the limitations urged by Applicant
regarding the types of bodies of water on which they may be used and encountered.
Thus, we must presume that both Applicant’s bass boats and Registrant’s kayaks

8 9 TTABVUE 13.
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include boats suitable for use on lakes, ponds, streams, rivers, or any other bodies of
water in which they may be normally operated. As noted above, in evaluating the
similarities between the goods, we must look to the goods as identified in the subject
application and cited registration. See Octocom, 16 USPQ2d at 1787. We may not read
limitations, such as those suggested by Applicant, into the respective identifications
that are not reflected by the wording thereof. As a result, and based upon the evidence
of record discussed above, we find that the goods of Applicant and Registrant are
commercially related small boats that are marketed and sold together, and may be
encountered together by consumers. The similarity of the goods is a factor that weighs
in favor of a finding of likelihood of confusion.
Channels of Trade and Classes of Consumers
In this case, neither Applicant’s nor Registrant’s identification of goods recites any
limitations on the channels of trade in which the goods may be encountered or the
classes of consumers to whom they may be marketed. Thus, absent any restrictions
in the identifications of goods, the goods of Applicant and Registrant are presumed to
move in all normal channels of trade and be available to all classes of potential
consumers of such goods. See In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). In each
case, the customers would include ordinary consumers interested in operating and
fishing from small boats; and the channels of trade would include retail and wholesale
distribution channels for small boating products. The evidence of record further
suggests that these goods are marketed together by retailers over the Internet.
Applicant argues that
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Applicant’s trademark is marketed by and through typical advertising
for bass boats such as in print advertisements and television. In
contrast, the registered trademark would market its kayaks to a
separate and distinct segment of the population at locations such as REI
and other outdoor sporting good facilities which typically would not
carry large powered boats.9

As discussed above, because there are no trade channel limitations recited in the
respective identifications of goods, we do not find probative Applicant’s arguments
that its goods are marketed in separate trade channels to customers that are distinct
from those in which Registrant’s goods are encountered. Simply put, there is no basis
in either identification of goods upon which to impose such limitations.
The overlap in trade channels and classes of purchasers are factors that further
weigh in favor of a finding of likelihood of confusion.
Sophistication of Purchasers
Applicant argues that
In the instant case, Applicant provides bass boats. Registrant provides
kayaks. Traditionally, consumers of these goods are sophisticated
insofar as persons who purchase a large, powered boats [sic] will be
familiar with brands sufficient to distinguish between a boat costing
thousands of dollars and a kayak costing only a few hundred.
As such, consumers exercise sufficient care in the purchase of the
respective goods or services that clearly would minimize any potential
for a likelihood of confusion as between the respective trademarks.10

Applicant relies upon In re N.A.D., Inc., 754 F.2d 996, 224 USPQ 969 (Fed. Cir.
1985); and In re Homeland Vinyl Prods., Inc., 81 USPQ2d 1378 (TTAB 2006) in
support of its position. However, in In re N.A.D., Inc., the goods and services at issue

9 Id. at 13.
10 Id. at 14.
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were “anesthesia machines for use in surgery,” “apparatus for administration of
anesthesia,” and “rental and leasing of hospital and surgical equipment and
consultation services relating to the operation of such equipment.” Id. at 969. Clearly,
these goods and services would be procured by “only very sophisticated purchasers.”
Id. at 971. In In re Homeland Vinyl Prods., Inc., the goods, namely “fence rails, are
not impulse purchases and the construction and installation of a fence would require
some level of knowledge and experience.” Id. at 1380. As a result, the Board “would
expect that such purchasers would exercise a relatively high degree of care in their
purchasing decision.” Id.
We acknowledge that the purchase of a bass boat or kayak may not be an impulse
purchase and may be presumed to be subject to a greater than ordinary degree of
care, despite the lack of evidence in the record to support such a finding. Even
assuming, arguendo, that selection of Applicant’s and Registrant’s goods would
involve a deliberate decision, this does not mean that the purchasers are immune
from confusion as to the origin of the respective goods sold under highly similar
marks, especially when the goods are related.
In this case, the relatedness of the goods and similarity of the marks outweigh any
sophisticated purchasing decision. See HRL Associates, Inc. v. Weiss Associates, Inc.,
12 USPQ2d 1819 (TTAB 1989), aff’d, Weiss Associates, Inc. v. HRL Associates, Inc.,
902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) (similarities of goods and marks
outweigh sophisticated purchasers, careful purchasing decision, and expensive
goods.). See also In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed.
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Cir. 1986), citing Carlisle Chemical Works, Inc. v. Hardman & Holden Ltd., 434 F.2d
1403, 168 USPQ 110, 112 (CCPA 1970) (“Human memories even of discriminating
purchasers...are not infallible.”).
Summary
Neither Applicant nor the Examining Attorney has discussed any of the remaining
du Pont factors. We note, nonetheless, that none seem to be applicable, inasmuch as
we have no evidence with respect to them.
In light of the foregoing, we conclude that consumers familiar with Registrant’s
goods sold under its above-referenced COBRA KAYAKS mark would be likely to
believe, upon encountering Applicant’s goods offered under its COBRA BASS BOATS
mark that the goods originated with or are associated with or sponsored by the same
entity. The relatedness of the goods and their channels of trade and classes of
consumes, and the similarity in connotation and overall commercial impression of the
marks outweigh any dissimilarities in their appearance and sound, and any
sophisticated purchasing decision.
Decision: The refusal to register is affirmed.