Sally Ballew

Trademark Trial and Appeal Board

Jan 13, 1999

No. 74636249 (T.T.A.B. Jan. 13, 1999)

Paper No. 11
BAC
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JAN. 13, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
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In re Sally Ballew, dba Fore Jr’s Only
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Serial No. 74/636,249
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William M. Hobby, III of Hobby & Beusse for Sally Ballew,
dba Fore Jr’s Only.
Darlene D. Bullock, Trademark Examining Attorney, Law
Office 101 (Chris Wells, Managing Attorney).
_______
Before Seeherman, Hairston and Chapman, Administrative
Trademark Judges.
Opinion by Chapman, Administrative Trademark Judge:
Sally Ballew, dba Fore Jr’s Only, has filed an
application to register the mark shown below
Ser. No. 74/636249
2
for “mail order catalog services featuring children’s golf
equipment, clothing and related accessories.”1
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the
ground that applicant’s mark, when applied to her
identified goods, so resembles the registered mark JRS.
ONLY! owned by Judy Ann of California, a California
corporation, for “ladies’ and girls’ clothing, namely,
blouses, body suits, swimsuits, shorts, jackets, blazers,
skirts, t-shirts, sweat pants and sweatshirt ensembles”2 as
to be likely to cause confusion, mistake or deception.
When the refusal was made final, applicant appealed.
Briefs have been filed, but an oral hearing was not
requested. We reverse the refusal to register.
Turning first to a consideration of the respective
goods and services, the Examining Attorney contends that
goods and services need only be related in some way to find
confusion; that applicant’s mail order catalog services
specifically includes the sale of clothing items, and the

1 Ser. No. 74/636,249, filed February 21, 1995. The claimed
dates of first use and first use in commerce are October 20, 1994
and December 15, 1994, respectively. Applicant disclaimed the
word “juniors.”
2 Reg. No. 1,483,524, issued April 5, 1988, Section 8 affidavit
accepted, Section 15 affidavit acknowledged. The claimed dates
Ser. No. 74/636249
3
cited registrant’s goods are various clothing items for
ladies and girls. In support of this contention, the
Examining Attorney attached to her final refusal copies of
over 35 third-party registrations, all of which issued on
the basis of use in commerce, to demonstrate “that entities
who have a service mark for catalog services also tend to
sell the goods under the same trademark.” (Examining
Attorney’s Appeal Brief, p. 8.)
Third-party registrations are not evidence of
commercial use of the marks shown therein, or that the
public is familiar with them. Nevertheless, third-party
registrations which individually cover a number of
different items and which are based on use in commerce have
some probative value to the extent they suggest that the
listed goods and/or services emanate from a single source.
See In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785
(TTAB 1993); and In re Mucky Duck Mustard Co., Inc., 6
USPQ2d 1467 (TTAB 1988).
Applicant argues that the cited registrant does not
sell golf equipment; and that there are significant
differences in applicant’s catalog sales services and the
cited registrant’s clothing.

of first use and first use in commerce are July 15, 1981. The
term “jrs.” is disclaimed.
Ser. No. 74/636249
4
Applicant’s argument ignores the reality that not only
applicant’s identification of services but also applicant’s
catalog (the specimens submitted in the application)
clearly include girls’ clothing. A fair reading of
applicant’s identification of services is that the words
“children’s” and “golf” apply to all of the specific items
listed as being sold by applicant, namely “equipment,
clothing and related accessories”. But even so
interpreting applicant’s services, children’s golf clothing
would encompass certain items of clothing listed in the
cited registration. For example, the cited registration
includes, inter alia, girls’ shorts and t-shirts; and it is
clear from applicant’s catalog that applicant sells girls’
shorts (p. 10) and t-shirts (p. 8). Thus, the cited
registration encompasses at least some of the goods sold by
applicant through applicant’s mail order catalog services.
However, even though some of the goods sold through
applicant’s mail order services are encompassed within the
items in the cited registration, we disagree with the
Examining Attorney that the channels of trade are the same.
Applicant’s services are “mail order catalog services”, and
thus, applicant’s channels of trade do not include, for
example, retail stores, the channel of trade in which the
registrant’s goods are likely to be sold. Nor can we
Ser. No. 74/636249
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assume that applicant would sell the cited registrant’s
goods through applicant’s catalog. Thus, we find the
channels of trade are not the same for applicant’s services
and the cited registrant’s goods.
Turning next to a consideration of the marks, the
Examining Attorney takes the position that the marks are
similar in sound because the word “JRS.” in the cited
registrant’s mark could be pronounced as “JUNIORS”, and
because both marks also include the word “ONLY”; that
applicant has adopted the cited registrant’s entire mark
and merely added one word thereto; that the marks are
similar in commercial impression because both entities are
targeting a particular audience of buyers, and the term
“ONLY” appearing in both marks tells the potential
purchaser that the goods are intended to be used solely by
“juniors”3; that the words “JRS.” and “JUNIORS” have been
disclaimed and therefore, these terms are less significant
or less dominant; that the dominant portion of applicant’s
mark is the words FORE and ONLY, while the dominant portion
of the registrant’s mark is the word ONLY!; and that the
design elements in applicant’s mark do not obviate the
similarity between the marks.

3 The Examining Attorney submitted Webster’s II New Riverside
University Dictionary definition of the term “juniors” as “...2.
Ser. No. 74/636249
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Applicant contends that the marks are simply not the
same because applicant’s mark includes the word FORE in
stylized type, a design of a golf ball which is the letter
“o” in the word “FORE”, and a design of a golf club, which
overlaps to form the letter “J” in the word “JUNIORS”.
Further, the words “juniors only” are on a different line
and in different type from the word “fore”, the golf term
“fore” 4 is emphasized in applicant’s mark, and the term
“juniors” is not abbreviated in applicant’s mark.
Applicant also points out that the terms “JRS.” and
“JUNIORS” have been disclaimed, thereby indicating that the
word is weak because of its descriptive nature, and thus,
will be easily distinguished by purchasers.
The emphasis in determining likelihood of confusion is
not on a side-by-side comparison of the marks, but rather
must be on the recollection of the average purchaser, who
normally retains a general recollection or impression of
the many trademarks encountered. See Johann Maria Farina
Gegenuber Dem Julichs-Platz v. Chesebrough-Pond, Inc., 470
F.2d 1385, 176 USPQ 199 (CCPA 1972); and Mucky Duck Mustard
Co., supra.

designed for or including young people....4. a clothing size for
girls and women with slender figures.”
4 The American Heritage Dictionary defines “fore” as “...Golf.
Used to warn those ahead that a ball is about to be driven in
Ser. No. 74/636249
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We agree with applicant that these marks, when
considered in their entireties, are different in appearance
and connotation and create different commercial
impressions. Registrant’s mark indicates a size of
clothing, that is, clothing for girls and/or slender,
petite women. Applicant’s mark, on the other hand, has a
strong golf connotation, as evidenced by the word FORE, the
golf ball design, and the golf club design. Although both
marks include the word “juniors” or the abbreviation
thereof, “junior” has a different connotation due to its
different use in each instance. Accordingly, a purchaser
familiar with registrant’s goods sold under the registered
mark would not, upon seeing applicant’s mark for its mail
order catalog services for children’s golf equipment,
clothing and related accessories, assume that applicant’s
services come from the same source as registrant’s goods.
Based on the dissimilarity of the marks, and the
separate, distinct channels of trade, we find that there is
no likelihood that the purchasing public would be confused
by applicant’s use of FORE JUNIORS ONLY and design as a
mark for mail order catalog services. See In re E. I.

their direction.” The Board takes judicial notice of this
definition. See TBMP §712.01.
Ser. No. 74/636249
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duPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973).
Decision: The refusal to register under Section 2(d)
is reversed.
E. J. Seeherman
P. T. Hairston
B. A. Chapman
Administrative Trademark Judges,
Trademark Trial and Appeal Board