Lori Goldstein

Trademark Trial and Appeal Board

Jan 19, 2012

No. 77667009 (T.T.A.B. Jan. 19, 2012)

Hearing: Mailed:
August 9, 2011 January 19, 2012
Bucher
UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Lori Goldstein
________

Serial Nos. 77666448 & 77667009
_______

Gary H. Fechter of McCarter & English LLP for Lori Goldstein

Michael R. Tanner,1 Trademark Examining Attorney, Law Office
117 (Brett Golden, Managing Attorney).
_______

Before Bucher, Cataldo and Lykos, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Lori Goldstein, a resident of New York, seeks
registration on the Principal Register of the mark LOGO
(in standard character format) 2 and
3

1 Although Mr. Tanner conducted the oral argument for the
Office, the prosecution of these applications through the
preparation of the briefs was handled by Ms. Florentina Blandu.
2 Application Serial No. 77666448 was filed on February 9,
2009, based upon applicant’s allegation of a bona fide intention
to use the mark in commerce.
3 Application Serial No. 77667009 was filed on February 10,
2009, based upon applicant’s allegation of a bona fide intention
to use the mark in commerce. The mark consists of the word LOGO
stylized with the letters OGO interlocking. Color is not claimed
as a feature of the mark.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial Nos. 77666448 & 77667009
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for goods identified in the applications, as amended, as
“apparel, namely, sweaters, pants, jackets, scarves,
t-shirts, headwear and footwear” in International Class 25.
The Trademark Examining Attorney issued a final refusal
to register these marks based upon Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d). The Trademark Examining
Attorney has taken the position that applicant’s marks, when
used in connection with the identified goods, so resembles
the mark LOGO GEAR registered for “clothing, namely,
shirts, T-shirts, sweatshirts, jackets, vests, anoraks and
hats,”4 also in International Class 25.
After the Trademark Examining Attorney made the refusal
final, applicant appealed to this Board, and an oral hearing
was conducted on August 9, 2011, before this three-member
panel of the Board. We affirm the refusals to register as
to both of applicant’s marks.
Arguments of applicant and the Trademark Examining Attorney
In urging registrability, applicant contends that the
marks have different commercial impressions; that the
respective goods travel in different channels of trade and
are offered to entirely different classes of customers; that

4 Registration No. 3216687 issued to Chad Robley, dba Logo
Gear on March 13, 2007. No claim is made to the exclusive right
to use the word “Gear” apart from the mark as shown.

Serial Nos. 77666448 & 77667009
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both distinct classes of purchasers are sophisticated; and
that the cited, registered mark should be accorded a narrow
scope of protection because it exists in a crowded
marketplace of marks containing the word “Logo.”
By contrast, the Trademark Examining Attorney argues
that the respective marks are confusingly similar; that the
goods are identical in part, and otherwise, closely related;
and that the respective goods are presumed to travel in
identical channels of trade to the same classes of ordinary
customers.
Preliminary matters
The Trademark Examining Attorney has objected to two
exhibits attached to applicant’s appeal brief: (1) “Exhibit
D” is a portion of the prosecution file of the cited
registration; and (2) “Exhibit E,” which contains copies of
nine, third-party registrations.5
Trademark Rule 2.142(d) reads as follows:

The record in the application should be
complete prior to the filing of an appeal.
The Trademark Trial and Appeal Board will
ordinarily not consider additional evidence
filed with the Board by the appellant or by
the examiner after the appeal is filed.

5 Namely, Registration Nos. 1761450, 2532536, 2947559,
3106209, 3106923, 3152417, 3557615, 3629239 and 3679040.

Serial Nos. 77666448 & 77667009
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In its reply brief, however, applicant argues that the
above language of Trademark Rule 2.142(d) provides the Board
with some discretion in considering additional evidence
after an appeal has been filed. 37 C.F.R. § 2.142(d).
However, we find that to permit applicant to place
additional evidence into the record with its appeal brief
would be manifestly unfair to the Trademark Examining
Attorney. We note that applicant was afforded two
opportunities, i.e., in its response to the first Office
action and in its request for reconsideration of the final
refusal to register, in which to submit the evidence
contained in this exhibit and has not provided the Board
with any reason why it did not timely make this evidence of
record during prosecution. Accordingly, applicant’s
submission of copies of the prosecution record of the cited
registration (“Exhibit D”) for the first time with
applicant’s appeal brief, is untimely and we have not given
any further consideration to such evidence in our
deliberations herein.6
As to the listings in “Exhibit E,” the record shows
that applicant, in its response (dated June 25, 2009) to the
initial Office action, simply informed the Trademark

6 We hasten to add that nothing contained in either of these
submissions, if placed into the record and given full
consideration, would have changed the result herein.
Serial Nos. 77666448 & 77667009
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Examining Attorney that United States Patent and Trademark
Office records revealed “three hundred sixty-four (364)
valid and sustaining federal applications and/or
registrations consisting of or comprising the word ‘LOGO.’”
Then in its request for reconsideration (January 14, 2010)
after the final Office action, applicant included a chart
containing references to six registrations owned by third
parties.
Applicant’s mere submission of a list of registrations
does not make such registrations part of the record. See In
re Dos Padres Inc., 49 USPQ2d 1860, 1861 n.2 (TTAB 1998);
and In re Broadway Chicken Inc., 38 USPQ2d 1559, 1561 n.6
(TTAB 1996). To make third party registrations part of the
record, an applicant may only submit copies of registrations
from United States Patent and Trademark Office records. See
In re Ruffin Gaming LLC, 66 USPQ2d 1924, 1925 n.3 (TTAB
2002); and In re Carolina Apparel, 48 USPQ2d 1542, 1543 n.2
(TTAB 1998).
In her denial of the request for reconsideration, the
previous Trademark Examining Attorney neither discussed the
listing nor otherwise affirmatively treated the list as
being of record. We find that the Trademark Examining
Attorney’s failure in her denial of the request for
reconsideration to object to the listing or otherwise advise
Serial Nos. 77666448 & 77667009
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the applicant of the insufficiency of this listing is not
held against her because this was a point in the prosecution
where applicant could no longer cure the insufficiency
absent a remand.
Finally, with its appeal brief, applicant submitted a
somewhat longer listing of third-party registrations (nine
this time) having LOGO-formative marks, along with
photocopies of the involved registration certificates.
However, even if we presume that these hard copies came from
the United States Patent and Trademark Office, the copies of
the registration certificates were untimely.
Accordingly, the Trademark Examining Attorney’s
objection is sustained and we have given no consideration
to either of these listing nor have we considered the
copies of third-party registrations attached to applicant’s
brief. 37 C.F.R. § 2.142(d); In re Fitch IBCA Inc.,
64 USPQ2d 1058, 1059 n.2 (TTAB 2002); and In re Trans
Cont’l Records Inc., 62 USPQ2d 1541, 1541 n.2 (TTAB 2002).
Finally, as to the probative value of the referenced
registrations in “Exhibit E,” we should note that even if
copies had been timely filed, third-party registrations are
entitled to little weight on the question of likelihood of
confusion because they are “not evidence of what happens in
the marketplace or that customers are familiar with them.”
Serial Nos. 77666448 & 77667009
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AMF Inc. v. Am. Leisure Prods. Inc., 474 F.2d 1403, 1406,
177 USPQ 268, 269 (CCPA 1973); and In re Melville Corp.,
18 USPQ2d 1386, 1388 (TTAB 1991). TBMP §§ 1203.02(e),
1207.01 (3d ed. 2011).
Likelihood of Confusion
We turn then to a consideration of the issue of
likelihood of confusion. Our determination of likelihood of
confusion is based upon our analysis of all of the probative
facts in evidence that are relevant to the factors bearing
on this issue. See 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); and In re Dixie Restaurants Inc., 105 F.3d
1405, 41 USPQ2d 1531 (Fed. Cir. 1997). In any likelihood of
confusion analysis, however, two key, although not
exclusive, considerations are the similarities between the
marks and the relationship between the goods and/or
services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
The Similarity of the Marks
As to the first du Pont factor in any likelihood of
confusion determination, we compare the similarity or
dissimilarity of the marks in their entireties as to
Serial Nos. 77666448 & 77667009
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appearance, sound, connotation and commercial impression.
Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed.
Cir. 2005).
Because the similarity or dissimilarity of the marks is
determined based upon a comparison of the marks in their
entireties, applicant is correct that the analysis cannot be
predicated on dissecting the marks into their various
components; that is, the decision must be based upon the
entire marks, not just select parts of the marks. In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985). See also Franklin Mint Corp. V. Master Mfg.
Co., 667 F.2d 1005, 212 USPQ 23, 234 (CCPA 1981) [“It is
axiomatic that a mark should not be dissected and considered
piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion”]. On the other hand,
different features may be analyzed to determine whether the
marks are similar. Price Candy Company v. Gold Medal Candy
Corporation, 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955).
In fact, 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., 224 USPQ at 751.
Serial Nos. 77666448 & 77667009
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Comparing the involved marks, applicant merely deleted
LOGO
and
LOGO GEAR

the word “Gear” from registrant’s mark. As a general rule,
the mere deletion of non-distinctive wording from a
registered mark will not be sufficient to overcome a
likelihood of confusion. See In re Optica Int’l, 196 USPQ
775, 778 (TTAB 1977) [OPTIQUE BOUTIQUE vs. OPTIQUE for
competing optical wear]. Although the highly descriptive7
and hence, disclaimed word “GEAR,” in registrant’s mark
cannot be ignored, it certainly is of less significance when
comparing these two marks in their entireties. Applicant
reinforces this principle with its citation to language from
cases such as California Prune & Apricot Growers Ass'n v.
Dobry Flour Mills, Inc., 40 USPQ 616, 617 (CCPA 1939) and
Singer Co. v. Kay Jewelry Stores, Inc., 148 USPQ 614 (TTAB
1966).8 However, in light of applicant’s contention that
registrant provides “logoed” items to its customers,
applicant applies this rule to registrant’s mark, and

7 The Trademark Examining Attorney argues that the word “Gear”
is defined as “clothing” in various dictionary definitions placed
into the record, and hence would be deemed generic for the goods
in the cited registration.
8 Applicant’s brief at 5-6.
Serial Nos. 77666448 & 77667009
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concludes that the word “gear” is the dominant feature of
the cited mark. We disagree. Viewing this composite mark
on the face of the cited registration, we must presume that
the word “Logo” could have a variety of meanings, many of
them being arbitrary as applied to the identified goods.
Applicant goes on to argue that its LOGO marks were
actually derived from the first two letters of applicant’s
first name and of her surname, LOri GOldstein. The
Trademark Examining Attorney responded that this argument
“is not helpful or relevant.” We agree. Irrespective of
its derivation, applicant’s marks are the four uppercase
letters “L·O·G·O.” Although applicant asserts this will be
recognized as an abbreviated reference to fashion designer
Lori Goldstein, we must presume on this record that
consumers will not know of this derivation, but rather will
simply see these marks as the common English-language word,
“Logo.”9 That is to say, there is nothing in the record to
support applicant’s assertion that consumers will recognize

9 In the context of this case, it is also a non-sequitur to
debate whether abbreviations are entitled to trademark
protection. In a case cited by applicant involving non-word
letter strings, Martahus v. Video Duplication Servs., Inc.,
3 F.3d 417, 27 USPQ2d 1846 (Fed. Cir. 1993), where cancellation
petitioner, Video Duplication Services, Inc. (VDS) had prevailed
at the Board, the Court of Appeals for the Federal Circuit simply
upheld the earlier ruling that Video Duplication Services had
used the initials, VDS, as a trade name or a service mark prior
to the date on which respondent’s had first made use of its VCDS
service mark.

Serial Nos. 77666448 & 77667009
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its marks as a shorthand reference to applicant, nor is such
a construction evident from viewing either mark. Hence, we
agree with the Trademark Examining Attorney that in
comparing the commercial impressions engendered by the
respective marks, the sole word in the applied-for marks is
identical to the dominant term in the cited mark, LOGO.
Accordingly, this critical du Pont factor weighs in favor of
finding a likelihood of confusion.
Relationship of the Goods and Their Trade Channels
We turn next to the du Pont factor focused on the
relationship of the goods.
As noted by the Trademark Examining Attorney,
registrant and applicant have identified two legally-
identical types of goods, namely, T-shirts and jackets.
Applicant’s headwear is broad enough to encompass
registrant’s listing of hats.10 Finally, the record shows

10 Under Tuxedo Monopoly, Inc. v. General Mills Fun Group,
648 F.2d 1335, 209 USPQ 986 (CCPA 1981), it is sufficient to
block an entire class if likelihood of confusion is found for any
single item which is legally identical. See also In re Max
Capital Group, Ltd., 93 USPQ2d 1243 (TTAB 2010) [“At the very
least, the ‘writing property and casualty insurance’ identified
in the applicant’s application must be considered to be legally
identical to the ‘underwriting of property and casualty
insurance’ identified in the cited registrations. The examining
attorney has also submitted third-party registrations showing the
relatedness of the other insurance services in applicant's
application and the cited registration, but in view of these
legally identical services, there is no need for us to discuss
this additional evidence,” citing to Tuxedo Monopoly].
Nonetheless, the Trademark Examining Attorney has made of record
Serial Nos. 77666448 & 77667009
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that applicant’s sweaters, pants, scarves and footwear are
of a kind that may emanate from the same source as
registrant’s kind of shirts, sweatshirts, vests and anoraks.
In order to show the relatedness of these last two groupings
of goods, the Trademark Examining Attorney submitted for the
record copies of third-party registrations of various
manufacturers and merchants, which he argues have probative
value to the extent that they serve to suggest that the
relevant goods listed therein are of a kind that may emanate
from a single source. See In re Infinity Broad. Corp.,
60 USPQ2d 1214, 1217-1218 (TTAB 2001); In re Albert Trostel
& Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); and In re
Mucky Duck Mustard Co., Inc., 6 USPQ2d 1467, 1470 at n.6
(TTAB 1988):

for, inter alia, “apparel, namely
headwear, footwear, … t-shirts,
shirts, neckties, ascots,
sweatshirts, … sweaters, jackets,
coats, jerseys, vests, … scarves
…”11
UGA UNDER GOD'S
ANOINTING
for “clothing, namely, shirts,
sweat shirts, caps, jackets,
sweaters, pants, scarves,
bathrobes, aprons, handkerchiefs,
and other apparel items, namely,
shawls, blouses”12

additional evidence supporting a finding that the remaining goods
are related, and makes the point that our finding of likelihood
of confusion is not limited merely to the overlapping goods.
11 Registration No. 3158736 issued on October 17, 2006.
12 Registration No. 3199298 issued on January 16, 2007.
Serial Nos. 77666448 & 77667009
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Quinn The Eskimo for “clothing, namely; pants,
jackets, shirts, sweatshirts, t-
shirts, headwear, footwear
athletic, … anoraks parkas, …
sweaters, swim wear, toques,
trousers, vests, wet suits”13
PREEN for, inter alia, “articles of
clothing …, namely headwear,
footwear, gloves, scarves, shawls,
belts, suspenders, shirts, jackets,
cardigans, pullovers, sweaters,
suits, trousers, waistcoats, coats,
t-shirts, shorts, sweatshirts, polo
shirts, … jeans, anoraks, tights,
overalls, bustiers, underwear,
capes and vests”14

for “men's, women's, children's and
infant clothing, namely, ear muffs,
t-shirts, shirts, tank tops, pants,
overalls, jackets, socks, leggings,
infant sleepers, snow suits, snow
skirts, sleepwear, loungewear,
jumpers, coats, dresses, skirts,
underwear, sweaters, swim wear,
ties, vests, shorts, mufflers,
scarves, mittens, gloves, headwear,
footwear, belts for use as
clothing, suspenders, raincoats,
smocks; costumes, namely,
masquerade, dance and bathing
costumes; workout clothes, namely,
jogging outfits, jogging pants and
jogging suits; sweat shirts, gym
suits, scarves, long johns, hats,
caps, visors”15

13 Registration No. 3221697 issued on March 27, 2007.
14 Registration No. 3343887 issued on November 27, 2007.
15 Registration No. 3393432 issued on March 4, 2008.
Serial Nos. 77666448 & 77667009
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for, inter alia, “clothing, namely;
shirts, t-shirts, jerseys,
turtlenecks, tank tops,
sweatshirts, pants, sweatpants,
warm-up suits, shorts, jackets,
vests, skirts, dresses, jumpers,
overalls, rompers, bibs, camisoles,
chemises, pajamas, scrubs, socks,
underwear, athletic uniforms, wind
suits, ponchos, rain suits,
wristbands, belts, neckwear,
bandanas, scarves, gloves, mittens;
headwear; footwear”16
LINO GIOVANCARLI for “men’s, women’s and children’s
clothing, namely, shirts, blouses,
t-shirts, skirts, coats, vests,
jackets, … sweatshirts, fleece
tops, fleece bottoms, rainwear,
anoraks, belts, trousers, jeans,
pants, … sweaters, hats, scarves,
ties, gloves, shoes, slippers,
sports shoes, sleepwear, pajamas,
nightgowns, swimwear, beachwear,
headwear, footwear”17 and

for, inter alia, “clothing, namely,
tops, bottoms, underwear, foul
weather gear, blazers, clothing
belts, dresses, hosiery, jackets,
jeans, sweatshirts, sweaters,
pants, scarves, shorts, skirts,
vests, socks, footwear, swimwear
and headwear.”18

Applicant contends that the respective goods and their
trade channels are, in actuality, quite different.
Applicant has introduced into the record a screen-print of
registrant’s website, supporting its argument that

16 Registration No. 3499195 issued on September 9, 2008.
17 Registration No. 3529868 issued on November 11, 2008.
18 Registration No. 3674434 issued on August 25, 2009.
Serial Nos. 77666448 & 77667009
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registrant’s customers are large corporations like Embassy
Suites, Marriott, Federal Express, Marriott, Porsche,
Qualcomm and Outback Steakhouse, for whom registrant places
their companies’ logos (e.g., trademarks and service marks)
on shirts, outerwear and hats:
19
However, we cannot resort to such extrinsic evidence in
order to restrict registrant’s goods. See, e.g., In re
Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986)
[evidence that relevant goods are expensive wines sold to

19 http://www.logogear.com/
Serial Nos. 77666448 & 77667009
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discriminating purchasers must be disregarded given the
absence of any such restrictions in the application or
registration]. Hence, we must presume that registrant may
be selling its LOGO GEAR shirts, outerwear and hats
directly to ordinary retail customers, including women
cyber-shopping on TV channels or Internet shopping sites.
As for its own goods, applicant has repeatedly argued
throughout the prosecution of this application that Ms.
Goldstein designs her LOGO line of high fashions for women.
Applicant’s items of clothing, footwear and accessories are
available for consumers to purchase exclusively through the
television channel QVC and through QVC’s Internet website:
20
Applicant argues that in the marketplace, inasmuch as
registrant’s goods are not sold on television, and because
one cannot purchase registrant’s goods online directly from
registrant’s website, the likelihood of confusion would be
de minimis.
However, we agree with the Trademark Examining Attorney
that applicant’s attempts to limit the scope of registrant’s
goods to corporate “logoed” clothing offered though only

20 www.qvc.com

Serial Nos. 77666448 & 77667009
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very defined channels of trade is inappropriate. The
presumption under Trademark Act Section 7(h), 15 U.S.C.
§ 1057(h), is that the registrant is the owner of the mark
and that use of the mark extends to all goods identified in
the registration. Neither registrant nor applicant has
placed any limitations on the identifications of goods as to
trade channels, types of customers, etc. As a result, the
presumption implies that the registrant operates in all
normal channels of trade and reaches all classes of
purchasers. Hence, we must presume that the involved goods,
in part identical and otherwise closely related items of
clothing, will travel in identical channels of trade to the
same classes of customers for the identified goods. In re
Melville Corp., 18 USPQ2d 1386, 1389 (TTAB 1991); McDonald's
Corp. v. McKinley, 13 USPQ2d 1895, 1899 (TTAB 1989); RE/MAX
of Am., Inc. v. Realty Mart, Inc., 207 USPQ 960, 964-65
(TTAB 1980). Specifically, as set forth in its
identification of goods, registrant’s items of clothing must
be presumed to travel in all normal channels of trade and
must be presumed to reach all classes of purchasers,
including women seeking clothing from a fashion designer.
Accordingly, these critical du Pont factors also weigh in
favor of finding a likelihood of confusion.
Serial Nos. 77666448 & 77667009
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Conditions of Purchase
As to the du Pont factor focusing on the conditions
under which and buyers to whom sales are made, applicant
makes the further argument, based upon the extrinsic
evidence placed in the file (as discussed above), that the
respective classes of purchasers are distinct and
sophisticated. According to applicant, registrant’s
customers are national corporate customers procuring large
volumes of clothing marked with the customer’s brands,
largely intended for their employees. By contrast,
applicant’s customers are savvy shoppers using electronic
media to purchase women’s high fashions.
However, for the same reasons that we cannot use
extrinsic evidence to distinguish the character of the goods
or to narrow the channels of trade, we cannot presume that
either registrant’s or applicant’s customers are
sophisticated, or would generally pursue the acquisition of
these items of clothing with anything exceeding the normal
level of care. Accordingly, this is a neutral factor in our
analysis.
Strength of the cited mark
We note that applicant has made much of the alleged
weakness of the cited mark. Applicant argues that the word
“Logo” in registrant’s composite mark has little source-
Serial Nos. 77666448 & 77667009
- 19 -
indicating value for products to be “logoed” with the
purchaser’s brands. However, the cited registration did not
issue under Section 2(f) of the Trademark Act, and the word
“Logo” appears to be the dominant portion of the cited mark.
As to applicant’s claims that the word “Logo” is
terribly weak and diluted in the clothing field, we have no
probative evidence supporting this claim. Due to their
tardy submission, none of the third-party registrations with
marks having “Logo” formatives has been considered.
Furthermore, as noted earlier, third-party
registrations generally are entitled to little weight on the
question of likelihood of confusion.
Moreover, as noted by the Trademark Examining Attorney,
third-party registrations having marks that place the word
“Logo” within a slogan or into a composite mark having other
inherently distinctive words, design features, or having
connotations designed to denigrate the value of branded
products21 are not analogous to applicant’s marks having no

21 e.g., “Logo” formative marks having other distinctive matter:
YOUR LOGO HAS NEVER
LOOKED SO GOOD
Logo22
NO LOGO SPORTSWEAR
FOR THE SELF ASSURED
TRUE LOGO FAN COLLECTION EQUINOX LOGO

Serial Nos. 77666448 & 77667009
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other literal elements. Finally, even if we should find it
necessary to accord the cited mark a narrow scope of
protection, this tribunal and our reviewing courts have
recognized that marks deemed weak are still entitled to
protection against the registration by a subsequent user of
a similar mark for closely-related goods or services. King
Candy Co. v. Eunice King's Kitchen, Inc., 496 F.2d 1400,
182 USPQ 108, 109 (CCPA 1974); and In re Colonial Stores,
Inc., 216 USPQ 793, 795 (TTAB 1982). As contended by the
Trademark Examining Attorney at the oral hearing, to accept
applicant’s argument on this factor would provide
substantially no protection for registrant under Section
2(d) of the Trademark Act.
Conclusion
In conclusion, weighing all the relevant du Pont
factors as discussed above, we find a likelihood of
confusion herein.
Decision: The refusal to register under Section 2(d)
of the Lanham Act is hereby affirmed.