Sportslife Enterprises, Inc.v.SportsLife Camps, Inc.Download PDFTrademark Trial and Appeal BoardJul 17, 2009No. 91178951 (T.T.A.B. Jul. 17, 2009) Copy Citation Oral Hearing: Mailed: June 23, 2009 July 17, 2009 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board ______ Sportslife Enterprises, Inc. v. SportsLife Camps, Inc. _____ Opposition No. 91178951 to Application No. 78954499 _____ Jeffrey H. Greger of Lowe Hauptman Ham & Berner LLP for Sportslife Enterprises, Inc. Kristine M. Boylan of Merchant & Gould, P.C. for Sportslife Camps, Inc. ______ Before Rogers, Bergsman and Wellington, Administrative Trademark Judges. Opinion by Wellington, Administrative Trademark Judge: Sportslife Camps, Inc. (applicant) has filed an application to register the mark SPORTSLIFE CAMPS, INC. (in standard characters) for âreligious-themed children's camps including sports and arts-related activities and religious experiencesâ in International Class 41.1 The term CAMPS, INC. has been disclaimed. 1 Application Serial no. 78954499 was filed on August 17, 2006 based on an allegation of first use in commerce on May 24, 2004. THIS OPINION IS NOT A PRECEDENT OF THE TTAB Opposition No. 91178951 2 Sportslife Enterprises, Inc. (opposer) has opposed registration of applicantâs mark under Section 2(d) of the Trademark Act on the ground of priority and likelihood of confusion. Specifically, opposer pleaded, inter alia, that âfor many years and long prior to any adoption and use by applicant, [opposer] adopted and uses the mark SPORTSLIFE as a common law trademark in connection with sporting goods and sporting goods-related businessesâ; that it is the owner of Registration No. 2548493 for the mark SPORTSLIFE (in standard characters) for âwholesale distributorships featuring a variety of goods and apparel for retail to schools, teams, leagues and individualsâ in International Class 352 and Registration No. 2472997 for the mark SPORTSLIFE ENTERPRISES and design, shown below, for âwholesale distributorships featuring sporting goods and apparel supplied to schools, teams, leagues, and individualsâ in International Class 35;3 2 Issued on March 12, 2002, Section 8 affidavit accepted and Section 15 affidavit acknowledged. 3 Issued on July 31, 2001, Section 8 affidavit accepted and Section 15 affidavit acknowledged. The exclusive right to use the word ENTERPRISES is disclaimed. Opposition No. 91178951 3 that opposer has used its marks âin connection with marketing and sale of sporting goods and apparel for sports including but not limited to consumers who operate churches, schools, camps, youth leagues and team-sports leaguesâ since 1981; and that there is a likelihood of confusion because applicantâs mark âso resembles opposerâs marks...that when applied and used in connection with applicantâs services..., will likely cause confusion as to the source, sponsorship or affiliation of the goods and/or services of the applicant as being authorized or otherwise affiliated with the opposer where no such affiliation or authorization exists.â Applicant, in its answer, admitted certain allegations but denied the salient allegations in the notice of opposition. The record automatically consists of the pleadings and the files of the involved applications. Opposer submitted the trial testimony of its president, Mr. Edward Nevins, with accompanying exhibits that include copies of the pleaded registrations. Opposer also submitted, under a notice of reliance, copies of documents produced by applicant during discovery and for which the parties have stipulated to their authenticity. Both parties filed briefs, including opposerâs rebuttal brief. An oral hearing was held on June 23, 2009 and both parties were represented by their counsel. Opposition No. 91178951 4 Standing Opposer has established that it is the owner of the pleaded registrations and that said registrations are valid and subsisting. In this regard, we note that during the Nevins deposition, counsel for opposer introduced copies of the registrations along with Office electronic database (TARR) printouts showing their status, and counsel for applicant stated that she had âno objectionâ to them being made of record. Nevins testimony, 27:5.4 Accordingly, opposer has shown that it has a personal interest in this proceeding. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842 (Fed. Cir. 2000); Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999); and Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982). Priority and Opposerâs Common Law Rights Opposerâs proof of ownership of its pleaded registrations removes priority as an issue in connection with the services covered by the registrations, vis-Ă -vis the recited services in the subject application. King Candy, Inc. v. Eunice Kingâs Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974). Opposer, however, also relies on its common law rights accrued through use of its SPORTSLIFE 4 Also, throughout its brief, applicant treats both registrations as being of record. See, e.g., Brief, p.1 (âdescription of recordâ). Opposition No. 91178951 5 mark, and for goods or services not covered by opposerâs registrations it is opposerâs burden to prove actual use of the marks prior to the earliest date on which applicant may rely. Initially, we note that applicant has not contested opposerâs claim to prior use of its marks. Indeed, applicant did not present any evidence for purposes of establishing priority. Nevertheless, applicant may rely on the subject applicationâs filing date, i.e., August 17, 2006, for priority purposes and it is opposerâs burden to establish that it has used its marks prior to that date. See Levi Strauss & Co. v. R. Josephs Sportswear Inc. 36 USPQ2d 1328, 1332 (TTAB 1998), quoting The Alliance Manufacturing Co., Inc. v. ABH Diversified Products, Inc., 226 USPQ 348, 351 (TTAB 1985)(âan applicant is entitled to rely upon the filing date of its application as a presumption of use of the mark subject of the application as of that dateâ). As noted, opposer alleged in the complaint that it has common law use of the mark SPORTSLIFE in connection with âsporting goods and sporting goods-related businessesâ since at least as early as 1981. In its brief and at oral hearing, opposer discussed these services and distinguished them from the services recited in the pleaded registrations, i.e., wholesale distributorship services. Specifically, Opposition No. 91178951 6 opposer states that it uses the SPORTSLIFE trademark âas a service mark for promotion of a dealer network designed to set up individuals as dealer[s] in sports equipment, apparel and [a] whole array of sports-related merchandise.â Brief, p. 6. Through the testimony of Mr. Nevins, supported by the accompanying exhibits, opposer establishes and elaborates on its common law rights with regard to these services. Essentially, opposer enters into âdealer agreementsâ with its customers (referred to as âdealersâ in the agreement and throughout this decision) and offers business consultation services to assist the dealers to initiate and maintain a sporting goods business. Nevins test., 10:12-13; Exhibit 2 at SLE-000022. According to the agreement, in return for certain fees (startup and monthly), opposer provides the dealer with âa Dealer Manual, a Dealer number which will identify you as a Dealer, access to an â800 toll free line for consultations,â monthly newsletters, a supplier directory, and access to the Dealers Only website offering resources such as online versions of the Dealer Manual, Supplier Directory, and current news alerts.â Nevins Exhib. 2, at SLE-000022. Opposerâs advertisements tout their ability to assist dealers with âvery low start-up costs...great discounts on all sports merchandise...the opportunity to work with a very supporting and helpful team.â Id. at SLE-000008. The dealer agreement further Opposition No. 91178951 7 provides that the dealer âwill operate separately of [opposer] and shall not use the name or logo in any way with their own business other than specified in Section E [of the agreement]â which provides that â[w]hile this Agreement is in force, Dealer can use [opposerâs] trademarks in stating that they are part of the Sportslife Dealer Network.â Id. at SLE-000023. Exhibits to the Nevins testimony consisting of opposerâs advertisements for the business consultation services indicate that the dealers will receive a âsupplier directoryâ that lists âsome of the biggest supplier and manufacturer names in the industryâ and that opposer has ânegotiated agreements directly with distributors and suppliers from across the country so that you will receive merchandise at or below wholesale prices.â Nevins Exhib. 2 at SLE000006. In other words, opposer is rendering business consultation services which include providing its dealers with the resources necessary for purchasing their merchandise, one of which, theoretically, could be opposer acting in its capacity as a wholesale distributor. Opposer, as a wholesale distributor, could then supply the dealer with the sporting goods and apparel for resale. Nonetheless, opposerâs wholesale distributorship service identified in its registrations remains a distinct type of service from that of advising and consulting the dealers in Opposition No. 91178951 8 setting up and maintaining their sporting goods retail business. Simply put, opposerâs consultation services are not within the scope of the identified wholesale distributorship services, as described in the pleaded registrations, and the extent of its common law rights in services not within the scope of its registrations is a matter for proof through competent evidence. Mr. Nevins testified that opposer used one of its advertising brochures (Exhibit 2, SLE-000019) âprobably back in the early â90âsâ and that it was âone of the first things we did.â Nevins test., 7:20-22. Moreover, a letter dated May 16, 1997 from opposer to a potential dealer offers consultation services and an opportunity to become part of the SPORTSLIFE âdealer network.â Nevins Exhibit 2 at SLE- 000020. In view thereof and based on the other evidence of record, we find that opposer has established by a preponderance of the evidence that it acquired common-law rights in the SPORTSLIFE mark in connection with the afore- described business consultation services prior to the filing date of the involved application. In summary, we find that there is no issue as to priority in regard to opposerâs pleaded trademark registrations as to the services identified therein, namely, wholesale distributorship services, and that opposer has also established priority with respect to its common-law Opposition No. 91178951 9 rights in the mark SPORTSLIFE in connection with the business consultation services. Likelihood of Confusion Our determination under Section 2(d) is based on an analysis of all of the facts in evidence that are relevant to the factors bearing on the likelihood of confusion issue. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In any likelihood of confusion analysis, however, two key 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, 29 (CCPA 1976). Opposer must establish that there is a likelihood of confusion by a preponderance of the evidence. The relevant du Pont factors in the proceeding now before us are discussed below. We turn first to the du Pont factor of the similarity or dissimilarity of the marks. We are required to determine the similarity or dissimilarity of the marks when viewed in their entireties in terms of appearance, sound, connotation and commercial impression. Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1722, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005). Opposition No. 91178951 10 Here, the marks are applicantâs mark SPORTSLIFE CAMPS, INC.5 and opposerâs two registered marks, SPORTSLIFE and SPORTSLIFE ENTERPRISES and design. We note further that opposerâs demonstrated common law rights show the mark SPORTSLIFE in connection in connection with the business consultation services (discussed infra). Opposerâs SPORTSLIFE mark is more similar to applicantâs mark than the SPORTSLIFE ENTERPRISES mark. Therefore, we first compare this mark with applicantâs mark. We find the two marks are very similar inasmuch as the only difference between them is applicantâs addition of the generic term, CAMPS, followed by the entity designation, INC. Neither of the additional terms has any source-identifying significance. Consumers would look to the SPORTSLIFE element in applicantâs mark as the distinctive portion. In sum, applicantâs mark is dominated by the term SPORTSLIFE which is identical to opposerâs mark. Similarly, SPORTSLIFE dominates opposerâs SPORTSLIFE ENTERPRISES mark insofar as it is the larger and more visually prominent term and the more distinctive term. Therefore, this mark, too, is very similar to applicantâs mark. The only noteworthy difference between opposerâs second mark and applicantâs mark is the slight difference 5 The fact that the subject application drawing shows depicts applicantâs mark utilizing upper and lower case lettering is irrelevant inasmuch as standard character format is claimed and we must therefore presume that the letters in the mark may appear in all normal fonts, sizes, cases, etc. Opposition No. 91178951 11 attributable to the different connotations of the respective disclaimed elements, i.e., ENTERPRISES and CAMPS, INC. While the disclaimed elements are not ignored in our analysis, overall the involved marks are very similar in appearance, sound and connotation. It is significant that all the marks use SPORTSLIFE as the first term, and the only term in opposerâs first mark, and it is also significant that both parties tend to display the marks in a way that stresses the S in SPORTS and the L in LIFE. Accordingly, we find the du Pont factor regarding the similarity of the marks weighs in favor of finding a likelihood of confusion. We next consider the du Pont factor involving the relationship, if any, between opposer's services, both as covered by its registrations and for which it has shown common law rights, and the services recited in the subject application. At the same time, we also consider the du Pont factors involving the classes of purchasers for the respective services as well as their trade channels. Again, applicantâs services are identified as âreligious-themed children's camps including sports and arts-related activities and religious experiences.â Opposer, on the other hand, provides wholesale distributorship services, as recited in its pleaded registrations, and renders business consultation services to others in the field of initiating Opposition No. 91178951 12 and maintaining a sporting goods and apparel retail business. Because opposer is providing two different types of services, we are necessarily making two separate determinations in considering their relationship to applicantâs religious-themed camp services for children. First, as to opposerâs âwholesale distributorship services featuring a variety of goods and apparel for retail to schools, teams, leagues and individuals,â we find these services to be on their face wholly different from applicantâs religious-themed camp services for children. There is very little, if anything, in common between these services. Even taking into consideration that opposerâs SPORTSLIFE wholesale distributorship services presumably include sporting goods and apparel6 and applicantâs religious-themed camp services incorporate sports into the childrenâs activities, we see no viable relationship between the respective services whereby consumers would believe that these services emanate from the same source or are otherwise affiliated. Likewise, the trade channels and classes of purchasers of the identified services are presumably very different. On the one hand, wholesale distributorship 6 Specifically, the registration for the mark SPORTSLIFE identifies âwholesale distributorships featuring a variety of goods and apparel...â and is broad enough to encompass the narrower scope of services identified in the registration for the mark SPORTSLIFE ENTERPRISES (stylized with design), i.e., âwholesale distributorship services featuring a variety of sporting goods and apparel...â Opposition No. 91178951 13 services are essentially commercial business to business services, involving the wholesaler selling goods to a retail operation which, in turn, may sell to the ultimate consumer.7 In other words, the consumers or clients of the wholesale distributorship services will be retail business owners selling sporting goods and apparel. While opposerâs marks may be used in various ways to advertise the wholesale distributorship services, and the distributed goods may be sold by various means, e.g., direct sales to retailers, through the internet, or through catalog or phone orders, ultimately the goods will be distributed to a limited class of consumers, specifically, retailers. On the other hand, religious-themed childrenâs camp services entail providing guardian care services of children for parents and entertaining the children. And, in this case, applicant has further narrowed its camp services for children by identifying them as religiously-themed, albeit including sports and arts-related activities. The advertising of these specifically different services, targeting different classes of consumers, would be different, and the channels 7 In this regard, we take notice of the following definitions: wholesale (Noun) 1. the business of selling goods in large quantities and at lower prices to retailers for resale; distributor (Noun) 1. a wholesaler who distributes goods to retailers in a specific area. Collins Essential English Dictionary (2nd Edition 2006). The Board may take judicial notice of dictionary definitions. University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 213 USPQ 594 (TTAB 1982), affâd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). Opposition No. 91178951 14 of trade through which opposer would deal with retailers and applicant would deal with prospective campers or their parents or guardians, also would be different. The classes of consumers are unrelated, for likelihood of confusion purposes, except to the extent that an individual sporting goods retailer who is also a parent might be a prospective purchaser of summer camp services. This, however, is a tenuous connection on which to find a likelihood of confusion, and moreover, opposer has not put into the record evidence that would tend to support a conclusion that such an individual would be likely to consider the wholesaler and the camp sponsor or provider to have some relationship. We next consider opposerâs business consultation services in relation to applicantâs religious-themed camp services for children. Before comparing these services, we make a point of clarification concerning opposerâs apparent conflation of its consultation services with its wholesale distributorship services identified in the registrations. On page 15 of its brief, opposer argues that the registered marks âare not limited by religion and consumers of opposerâs services are in fact suggested to call on churches and Christian-based youth organizations as well as other secular and non-secular consumer bases.â Later, on the same page, opposer argues: Applicantâs adoption of the identical mark SPORTSLIFE assumes that it can carve-out a niche of religious Opposition No. 91178951 15 Christian youth customers and church-related consumers and avoid confusion with Opposerâs broader class of dealers and network of dealers throughout the United States. Opposerâs registrations are not limited. Opposerâs services may be offered to customers which directly overlap with the religiously targeted audience in the Applicantâs pending application. As we have already pointed out in this decision, opposerâs business consultation services are separate and distinct from its wholesale distributorship services. The consumers of opposerâs business consultation services, i.e., prospective retail dealers in sporting goods and apparel, and the trade channels through which such services are offered are only as extensive as the evidence shows. In other words, unlike the services in opposerâs registrations, which benefit from the assumption that they can be marketed to all customary classes of consumers through all customary channels of trade, we cannot assume that the business consultation services are offered so broadly. Rather, the classes of customers for opposerâs consultation services and their trade channels are defined by the evidence of record. With the aforementioned distinction in mind and focusing now on opposerâs business consultation services, we find that the record does not support a conclusion that such services are sufficiently related to applicantâs religious- themed children's camps including sports and arts-related activities and religious experiences to support a finding of a likelihood of confusion. Mr. Nevins testified that Opposition No. 91178951 16 opposer receives âquite a bitâ of business referrals via the internet and that its other primary advertising venue is magazines (âWe advertise. Magazines. Thatâs primarily it. The Internet and a couple of the magazine [sic] we advertise in.â) Nevins test., 19:12, 15-17. Opposer did not submit any copies of the magazine advertisements or otherwise identify the type of magazines in which it places advertisements offering its business consultation services. Thus, we have no way of discerning whether such magazines are of the same type that would be expected to also include an advertisement for religious-themed camp services involving arts and sports-related activities. As to opposerâs internet presence, Mr. Nevins testified to certain exhibits that indicate a certain percentage of visitors to its website were directed there after entering the search term âSportslifeâ and other terms. Nevins test., 20:18-21:11, Exhibit 7. For example, in July 2008, 13.38% of the visitors directed to applicantâs website by a search engine had entered the term âSportslifeâ in its search. Id. Mr. Nevins also testified that an internet search of the term âsportslifeâ would retrieve results listing opposerâs company first and then applicant second. Nevins test., 18:20-22, Exhibit 6. Again, without further context or evidence, Mr. Nevinsâ testimony and the related exhibits do very little to demonstrate that internet searchers would Opposition No. 91178951 17 likely be confused upon encountering the partiesâ respective marks in connection with the different services. It is fair to say that virtually every service imaginable is advertised on the internet. Thus, the fact that both applicant and opposer advertise their services on the internet, albeit under similar marks, can hardly be considered a common link between the services. To the extent that opposer seeks to show consumers are likely to be confused based on the two partiesâ websites placing first and second in the search result list, there is very little context or information provided to conclude that the partiesâ services are necessarily the most prominent or popular. Indeed, the exhibit (a Google search engine âhit listâ) indicates a total of 68,300 results for the term âsportslifeâ and displays other uses of the term in connection with other business entities, e.g., âSports Life Art & Design...Limited edition and stock sports prints from Sports Life Art.â Exhibit 6, at SLE000213. In view thereof, the evidence shows that the two primary channels of trade for opposerâs services are magazines and the internet. However, even though applicant also advertises its services via the internet, we are not persuaded that the mere common presence on the internet of websites or information about opposer and applicant will Opposition No. 91178951 18 lead to a likelihood of confusion among prospective consumers of the very different services. In making its argument that consumers may mistakenly believe there is an affiliation or connection between the services rendered by applicant and the services rendered by opposer, opposer asserts that its dealers are encouraged to solicit religious groups and organizations for sales of sporting goods and apparel. Opposer therefore concludes that a âclear nexus exists between a sporting goods business offering sales to a church and consumers exposed to such sporting goods business, and the identical mark used for sporting goods and sports related services in connection with a sports theme day camp at the same like-kind churches and likely to result in the same consumer or authorized buyer at such church assuming an affiliation or nexus between the two identical marks.â Brief, p. 14-15. There are several flaws with opposerâs argument. First and foremost, there is no evidence that opposer itself is rendering sporting goods retailing services, i.e., selling sporting goods at the retail level to the end user, under the mark SPORTSLIFE. Indeed, there is no evidence that any of opposerâs dealers use the mark SPORTSLIFE as a source- identifier for their retail services. In fact, opposerâs agreement with its dealers precludes the dealers from using opposerâs marks except to indicate that the dealers are Opposition No. 91178951 19 members of opposerâs network, and even then, such use does not appear to be required. The record only reveals one dealer using opposerâs mark in this way, as opposer produced only a single printout from a page of one of its dealerâs websites wherein, under the subheading of âuseful links,â there is a banner box containing the following message: SportsLife Proud Member Of The SportsLife Dealer Network Nevins Exib. 2 at SLE000012. This link in the banner box informs the website visitor that the dealer is part of dealer network and does not convey the message that the website owner is rendering its own retail services under the mark SPORTSLIFE. With respect to this type of link, Mr. Nevins testified that âother dealers do it,â but that he was ânot sure how many.â Nevins test., 9:13-14. He also states that âthere may be some that put it in print material. I donât know. I donât have firsthand knowledge.â Id. 9:16- 18. Based on the one example of a dealer website referencing its participation in opposerâs SPORTSLIFE dealer network and in view of the uncertain and limited testimony of Mr. Nevins, we cannot agree with opposer that a âclear nexusâ exists between that dealerâs sporting goods business and applicantâs religious-themed camp services for children that feature sports activities. The evidence is simply too nebulous and inconclusive in this regard. Ultimately, there appear to be several degrees of separation between opposerâs Opposition No. 91178951 20 business consultation services being rendered to sporting goods dealers and applicantâs religious-themed camp services which are being rendered to the parents of children attending camp. In summary, we find that neither applicantâs wholesale distributorship services, as recited in the pleaded registrations, nor opposerâs business consultation services, for which it has made common law use of the mark SPORTSLIFE in connection therewith, have any viable connection with applicantâs religious-themed children's camps including sports and arts-related activities and religious experiences. We further are unable to find any significant common thread between the respective servicesâ trade channels or the consumers to whom said services are being marketed. Accordingly, the du Pont factors of the similarity of the services, channels of trade and classes of purchasers all favor applicant and do not support a finding of a likelihood of confusion. The parties did not introduce any evidence bearing on the other du Pont factors. Upon balancing all of the relevant du Pont factors for which there is evidence of record, we conclude that there is no likelihood of confusion. Opposer has not demonstrated by a preponderance of the evidence that a likelihood of Opposition No. 91178951 21 confusion exists when the partiesâ marks are used in connection with the respective services. Decision: The opposition is dismissed. The application will be forwarded for issuance of registration. Copy with citationCopy as parenthetical citation