Sports Star Inc.

Trademark Trial and Appeal BoardAug 14, 2020

88168796 (T.T.A.B. Aug. 14, 2020)

Mailed: August 14, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Sports Star Inc. _____ Serial No. 88168796 _____ Michael Sherrill of Sherrill Law Offices PLLC, for Sports Star Inc. Julie M. Guttadauro, Trademark Examining Attorney, Law Office 106, Mary I. Sparrow, Managing Attorney. _____ Before Heasley, Pologeorgis and Lebow, Administrative Trademark Judges. Opinion by Lebow, Administrative Trademark Judge: Applicant, Sports Star Inc., seeks registration on the Principal Register of the mark LAUNCH ANGLE and Design, as displayed below, for “sports training apparatus, namely, pitching machine, portable homerun fence,” in International Class 28:1 1 Application Serial No. 88168796 was filed on October 25, 2018 under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intention to use the mark in commerce. The application also includes goods in International Class 25, which are not at issue in this appeal. This Opinion Is Not a Precedent of the TTAB Precedent of the TTAB PrePrecedent of the TTAB Serial No. 88168796 - 2 - Applicant disclaimed the exclusive right to use “LAUNCH ANGLE” apart from the mark as shown. The description of the mark reads as follows: The mark consists of an abstract design of a human with an “S” shape forming the body and a circle for the head, swinging a baseball bat with concentric ovals depicting the path of travel of the bat through a full swing. The stylized wording “LAUNCH ANGLE” is displayed following the curve of the upper portion of the ovals. Color is not claimed as a feature of the mark. Applicant appeals from the Examining Attorney’s final refusal to register pursuant to Trademark Act § 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when used in connection with the identified goods, so resembles the mark LAUNCH ANGLE, in standard characters, registered on the Supplemental Register for “Baseball bats and baseball batting tees; Baseball batting tees; Sports training apparatus featuring a baseball bat, ball, and a tee for improving bats swings” in International Class 28, as to be likely to cause confusion.2 The appeal is fully briefed. We affirm the refusal to register. I. Applicable Law and Analysis The fundamental purpose of Trademark Act § 2(d) is to prevent confusion as to 2 Registration No. 5361750, issued on December 19, 2017. Serial No. 88168796 - 3 - source, and to protect registrants from damage caused by registration of confusingly similar marks. Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327, 331 (1985). Our analysis is based on all of the probative evidence of record. In re E. I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”). In making our determination, we consider each DuPont factor for which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). Varying weights may be assigned to each DuPont factor depending on the evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“[T]he various evidentiary factors may play more or less weighty roles in any particular determination”). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods and services. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The 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.”). These DuPont factors are discussed below. A. Similarity or Dissimilarity of the Goods and Trade Channels We begin our analysis with the second and third DuPont factors. The second DuPont factor considers the “similarity or dissimilarity and nature of the goods or Serial No. 88168796 - 4 - services as described in an application or registration,” In re Detroit Athletic Co., 128 USPQ2d 1047, 1051 (Fed. Cir. 2018) (quoting DuPont, 476 F.2d at 1361), and the third DuPont factor considers the “similarity or dissimilarity of established, likely-to- continue trade channels.” Id. at 1052. It is “not necessary that the goods be identical or even competitive to support a finding of a likelihood of confusion.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven, Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). “[L]ikelihood of confusion can be found ‘if the respective goods are related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that they emanate from the same source. ’” Id. The Examining Attorney argues that the goods are closely related and travel in the same trade channels, which Applicant does not dispute.3 Applicant’s goods are pitching machines and portable homerun fences. Registrant’s goods are baseball bats, baseball batting tees, and sports training apparatus featuring a baseball bat, ball, and a tee for improving bat swings. Even without additional evidence, the goods are clearly complementary and closely related. Registrant’s baseball bats, batting tees, and baseballs can be used with Applicant’s pitching machines and homerun fences. The Examining Attorney also provided evidence of ten third-party registrations for marks that include one or more of both Applicant’s and Registrant’s goods .4 “As a general proposition, although use-based, third-party registrations alone are not 3 6 TTABVUE 10, 18. 4 September 10, 2019 Final Office Action, TSDR 32-95 (Registration Nos. 4190396, 5233098, 5794764, 5123800, 5498701, 5510841, 5603452, 5405777, 5520955, and 5651783). Serial No. 88168796 - 5 - evidence that the marks shown therein are in use or that the public is familiar with them, they nonetheless may have some probative value to the extent they may serve to suggest that the goods are of a kind that emanate from a single source.” In re I- Coat Company, LLC, 126 USPQ2d 1730, 1738 (TTAB 2018). Further, the Examining Attorney provided Internet evidence from three sporting goods retailers that provide both Applicant’s and Registrant’s goods5 to show that “[t]he goods are the type sold to consumers seeking sporting goods through sporting goods retailers” and thus would be sold “to the same class of purchasers and encountered under circumstances leading one to mistakenly believe the goods originate from the same source.”6 This evidence serves to establish that the respective goods are closely related. “[I]t is settled that evidence of third-party use of the same mark for an applicant’s identified goods and services (or similar goods or services) on the one hand, and an opposer’s (or registrant’s) identified goods and services (or similar goods and services) on the other, may establish a relationship between those goods and services.” Ricardo Media Inc. v. Inventive Software, LLC, 219 USPQ2d 311355, *3 (TTAB 2019). It also shows how the respective goods may travel in the same or overlapping channels of trade—generally, sporting goods retailers—to the same or overlapping classes of customers: baseball and softball players, or people interested in playing baseball or softball. Because the evidence establishes that Applicant’s and Registrant’s goods are 5 Id. at 8-31 (baseballsavings.com; dickssportinggoods.com; and academy.com). 6 6 TTABVUE 18. Serial No. 88168796 - 6 - closely related and may travel in the same trade channels to the same or overlapping classes of purchasers, the second and third DuPont factors strongly support a finding of a likelihood of confusion. B. Similarity or Dissimilarity of the Marks The first DuPont factor considers the “similarities or dissimilarities of the marks in their entireties as to appearance, sound, connotation and commercial impression.” In re Detroit Athletic Co., 128 USPQ2d at 1047 (quoting DuPont, 177 USPQ at 567). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, 126 USPQ2d 1742, 1746 (TTAB 2018) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d mem., 777 Fed. Appx. 516 (Fed. Cir. 2019). The test is not whether the marks can be distinguished in a side -by-side comparison, but rather whether their overall commercial impressions are so similar that confusion as to the source of the goods offered under the respective marks is likely to result. See Zheng Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (citing Coach Servs., 101 USPQ2d at 1721). Our focus is on the recollection of the average purchaser, who normally retains a general rather than a specific impression of trademarks. See Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014); Neutrogena Corp. v. Bristol-Myers Co., 410 F.2d 1391, 161 USPQ 687, 688 (CCPA 1969) (many consumers “may have but dim recollections from having previously seen or heard one or the other of the involved marks.”). In making our determination, we keep in mind that the more closely related Serial No. 88168796 - 7 - the goods are, the more “the degree of similarity [between the marks] necessary to support a conclusion of likely confusion declines.” Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992). The Examining Attorney argues that the marks are confusingly similar in sound, appearance and connotation because they “share the identical phrase ‘LAUNCH ANGLE’ which is ‘the vertical angle at which the ball leaves a player’s bat after being struck’” and “is descriptive in the context of the goods.”7 Applicant does not dispute that the marks are similar in sound and connotation, but contends that the marks are dissimilar in appearance because the design feature of its mark “constitut[es] the dominant feature of the mark and the words LAUCH ANGLE set forth [sic] in a particular font and a distinctive curvature,” whereas Registrant’s mark has no stylization, background or design.8 However, as the Examining Attorney correctly notes, “[a] mark in typed or standard characters [like the cited mark] may be displayed in any lettering style; the rights reside in the wording or other literal element and not in any particular display or rendition,” citing In re Viterra Inc., 671 F.3d 1358, 1363, 101 USPQ2d 1905, 1909 (Fed. Cir. 2012); In re Mighty Leaf Tea, 601 F.3d 1342, 1348, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010); 37 C.F.R. §2.52(a); TRADEMARK MANUAL OF EXAMINING PROCEDURE 7 6 TTABVUE 6-7; February 15, 2019 Office Action, TSDR 8 (citing the Major League Baseball organization’s definition of the term). Trademark Status & Document Retrieval (“TSDR”) citations refer to the docket and electronic file database for the involved application. All citations to the TSDR database are to the downloadable .PDF version of the documents. 8 4 TTABVUE 6. Serial No. 88168796 - 8 - (TMEP) §1207.01(c)(iii) (October 2018).9 Therefore, Registrant’s mark “could be presented in the same manner of display.”10 Additionally, when a mark is comprised of both words and a design, such as Applicant’s mark, the words are normally accorded greater weight because consumers are likely to remember and use the word(s) to request the goods or services. See, e.g., In re Viterra, Inc., 101 USPQ2d at 1905. Here, the design component of Applicant’s mark depicting a person swinging a baseball bat at angle to “launch” a baseball merely serves to reinforce the wording in the mark , which is identical to Registrant’s mark. See In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1185 (TTAB 2018) (design of chateau in applicant’s mark reinforces the word CHATEAU in registrant’s mark). Because the marks are identical in sound and connotation, and similar in appearance and commercial impression, this factor strongly supports a finding of likelihood of confusion. Applicant argues that Registrant’s LAUNCH ANGLE mark is “a merely descriptive term entitled to an extremely limited scope of protection as a weak mark. Indeed, the application that matured into the ‘Prior [sic] Registration was amended to the Supplemental Register when the Examiner refused registration of the mark on the Principle Register as merely descriptive.”11 Applicant contends that because its 9 6 TTABVUE 7. 10 Id. 11 4 TTABVUE 5. Serial No. 88168796 - 9 - mark includes a design and stylized font, “customers and potential customers for such goods would pay little attention to the descriptive term “launch angle” in a mark, and instead would focus upon other aspects and features of the mark.”12 While the strength of the cited mark is always relevant to assessing the likelihood of confusion, the citation of registrations on the Supplemental Register does not involve a different test for likelihood of confusion. See In re The Clorox Co., 578 F.2d 305, 198 USPQ 337, 341 (CCPA 1978) (“No reason exists … for the application of different standards to registrations cited under 2(d).”). Additionally, as the Examining Attorney correctly notes, even weak marks are entitled to protection under Section 2(d) of the Trademark Act against the registration a similar mark for closely related goods or services by a subsequent user.13 “It has often been emphasized that even weak marks are entitled to protection against confusion.” Hunt Control Sys. Inc. v. Koninklijke Philips Elecs. N.V., 98 USPQ2d 1558, 1567-68 (TTAB 2011) (quoting King Candy Co. v. Eunice King's Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974)); In re Max Capital Group Ltd., 93 USPQ2d 1243, 1246 (TTAB 2010) (“[E]ven suggestive or weak marks are entitled to protection from the use of a very similar mark for legally identical services”); see also In re Clorox Co., 198 USPQ at 341 (ERASE for a laundry soil and stain remover held confusingly similar to STAIN ERASER, registered on the Supplemental Register, for a stain remover). 12 Id. 13 6 TTABVUE 8. Serial No. 88168796 - 10 - Consequently, even though the cited LAUNCH ANGLE mark may be considered a weak mark, Applicant’s contemporaneous use of its LAUNCH ANGLE and design mark is likely to cause confusion, especially since the respective marks project substantially the same overall commercial impression and are used in connection with closely related goods. II. Conclusion In sum, we find: (1) that Applicant’s and Registrant’s marks are very similar in appearance, sound, connotation, and overall commercial impression; (2) that the Application and Registration identify closely related, overlapping and complementary goods; and (3) that these goods would tend to travel in the same trade channels to the same or overlapping classes of consumers. Accordingly, there is a likelihood of confusion. Decision: The refusal to register Applicant’s mark under Trademark Act § 2(d) for the goods in International Class 28 is affirmed.14 14 As previously noted, Class 25 were not at issue in this appeal. Accordingly, the application will proceed solely in regard to the Applicant’s goods identified in Class 25.