Sportslife Enterprises, Inc.v.SportsLife Camps, Inc.

Trademark Trial and Appeal Board

Jul 17, 2009

No. 91178951 (T.T.A.B. Jul. 17, 2009)

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 “religious-themed children's camps
including sports and arts-related activities and religious
experiences” 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 applicant’s mark under Section 2(d) of the
Trademark Act on the ground of priority and likelihood of
confusion. Specifically, opposer pleaded, inter alia, that
“for 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 businesses”; that it is the owner of
Registration No. 2548493 for the mark SPORTSLIFE (in
standard characters) for “wholesale distributorships
featuring a variety of goods and apparel for retail to
schools, teams, leagues and individuals” in International
Class 352 and Registration No. 2472997 for the mark
SPORTSLIFE ENTERPRISES and design, shown below, for
“wholesale distributorships featuring sporting goods and
apparel supplied to schools, teams, leagues, and
individuals” 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 “in 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 leagues” since
1981; and that there is a likelihood of confusion because
applicant’s mark “so resembles opposer’s marks...that when
applied and used in connection with applicant’s 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.”
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 opposer’s 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 “no objection” 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 Opposer’s Common Law Rights
Opposer’s proof of ownership of its pleaded
registrations removes priority as an issue in connection
with the services covered by the registrations, vis-à-vis
the recited services in the subject application. King
Candy, Inc. v. Eunice King’s 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 (“description of
record”).
Opposition No. 91178951
5
mark, and for goods or services not covered by opposer’s
registrations it is opposer’s 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
opposer’s 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 application’s filing date, i.e., August 17,
2006, for priority purposes and it is opposer’s 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)(“an 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 date”).
As noted, opposer alleged in the complaint that it has
common law use of the mark SPORTSLIFE in connection with
“sporting goods and sporting goods-related businesses” 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 “as 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.” 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 “dealer agreements” with
its customers (referred to as “dealers” 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 “a Dealer Manual, a Dealer number which will
identify you as a Dealer, access to an ‘800 toll free line
for consultations,’ 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.” Nevins Exhib.
2, at SLE-000022. Opposer’s advertisements tout their
ability to assist dealers with “very low start-up
costs...great discounts on all sports merchandise...the
opportunity to work with a very supporting and helpful
team.” Id. at SLE-000008. The dealer agreement further
Opposition No. 91178951
7
provides that the dealer “will 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]” which provides that “[w]hile this Agreement is
in force, Dealer can use [opposer’s] trademarks in stating
that they are part of the Sportslife Dealer Network.” Id.
at SLE-000023.
Exhibits to the Nevins testimony consisting of
opposer’s advertisements for the business consultation
services indicate that the dealers will receive a “supplier
directory” that lists “some of the biggest supplier and
manufacturer names in the industry” and that opposer has
“negotiated agreements directly with distributors and
suppliers from across the country so that you will receive
merchandise at or below wholesale prices.” 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, opposer’s 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, opposer’s 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) “probably back
in the early ‘90’s” and that it was “one of the first things
we did.” 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 “dealer network.” 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 opposer’s 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 applicant’s mark SPORTSLIFE CAMPS,
INC.5 and opposer’s two registered marks, SPORTSLIFE and
SPORTSLIFE ENTERPRISES and design. We note further that
opposer’s demonstrated common law rights show the mark
SPORTSLIFE in connection in connection with the business
consultation services (discussed infra). Opposer’s
SPORTSLIFE mark is more similar to applicant’s mark than the
SPORTSLIFE ENTERPRISES mark. Therefore, we first compare
this mark with applicant’s mark. We find the two marks are
very similar inasmuch as the only difference between them is
applicant’s 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 applicant’s mark as
the distinctive portion. In sum, applicant’s mark is
dominated by the term SPORTSLIFE which is identical to
opposer’s mark. Similarly, SPORTSLIFE dominates opposer’s
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 applicant’s
mark. The only noteworthy difference between opposer’s
second mark and applicant’s mark is the slight difference

5 The fact that the subject application drawing shows depicts
applicant’s 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 opposer’s 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,
applicant’s services are identified as “religious-themed
children's camps including sports and arts-related
activities and religious experiences.” 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
applicant’s religious-themed camp services for children.
First, as to opposer’s “wholesale distributorship
services featuring a variety of goods and apparel for retail
to schools, teams, leagues and individuals,” we find these
services to be on their face wholly different from
applicant’s religious-themed camp services for children.
There is very little, if anything, in common between these
services. Even taking into consideration that opposer’s
SPORTSLIFE wholesale distributorship services presumably
include sporting goods and apparel6 and applicant’s
religious-themed camp services incorporate sports into the
children’s 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 “wholesale distributorships featuring a variety of
goods and apparel...” 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.,
“wholesale distributorship services featuring a variety of
sporting goods and apparel...”
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 opposer’s
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 children’s 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), aff’d, 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 opposer’s business consultation
services in relation to applicant’s religious-themed camp
services for children. Before comparing these services, we
make a point of clarification concerning opposer’s 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 “are not limited by religion and consumers of
opposer’s services are in fact suggested to call on churches
and Christian-based youth organizations as well as other
secular and non-secular consumer bases.” Later, on the same
page, opposer argues:
Applicant’s 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 Opposer’s broader class of
dealers and network of dealers throughout the United
States. Opposer’s registrations are not limited.
Opposer’s services may be offered to customers which
directly overlap with the religiously targeted audience
in the Applicant’s pending application.

As we have already pointed out in this decision,
opposer’s business consultation services are separate and
distinct from its wholesale distributorship services. The
consumers of opposer’s 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 opposer’s 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 opposer’s consultation services and
their trade channels are defined by the evidence of record.
With the aforementioned distinction in mind and
focusing now on opposer’s business consultation services, we
find that the record does not support a conclusion that such
services are sufficiently related to applicant’s 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 “quite a bit” of business referrals via the
internet and that its other primary advertising venue is
magazines (“We advertise. Magazines. That’s primarily it.
The Internet and a couple of the magazine [sic] we advertise
in.”) 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 opposer’s 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 “Sportslife” and other terms. Nevins test.,
20:18-21:11, Exhibit 7. For example, in July 2008, 13.38%
of the visitors directed to applicant’s website by a search
engine had entered the term “Sportslife” in its search. Id.
Mr. Nevins also testified that an internet search of the
term “sportslife” would retrieve results listing opposer’s
company first and then applicant second. Nevins test.,
18:20-22, Exhibit 6. Again, without further context or
evidence, Mr. Nevins’ testimony and the related exhibits do
very little to demonstrate that internet searchers would
Opposition No. 91178951
17
likely be confused upon encountering the parties’ 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
parties’ websites placing first and second in the search
result list, there is very little context or information
provided to conclude that the parties’ services are
necessarily the most prominent or popular. Indeed, the
exhibit (a Google search engine “hit list”) indicates a
total of 68,300 results for the term “sportslife” and
displays other uses of the term in connection with other
business entities, e.g., “Sports Life Art & Design...Limited
edition and stock sports prints from Sports Life Art.”
Exhibit 6, at SLE000213.
In view thereof, the evidence shows that the two
primary channels of trade for opposer’s 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 “clear 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.” Brief, p. 14-15.
There are several flaws with opposer’s 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 opposer’s dealers use the mark SPORTSLIFE as a source-
identifier for their retail services. In fact, opposer’s
agreement with its dealers precludes the dealers from using
opposer’s marks except to indicate that the dealers are
Opposition No. 91178951
19
members of opposer’s network, and even then, such use does
not appear to be required. The record only reveals one
dealer using opposer’s mark in this way, as opposer produced
only a single printout from a page of one of its dealer’s
websites wherein, under the subheading of “useful links,”
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 “other dealers do it,” but that he was
“not sure how many.” Nevins test., 9:13-14. He also states
that “there may be some that put it in print material. I
don’t know. I don’t have firsthand knowledge.” Id. 9:16-
18. Based on the one example of a dealer website
referencing its participation in opposer’s SPORTSLIFE dealer
network and in view of the uncertain and limited testimony
of Mr. Nevins, we cannot agree with opposer that a “clear
nexus” exists between that dealer’s sporting goods business
and applicant’s 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 opposer’s
Opposition No. 91178951
20
business consultation services being rendered to sporting
goods dealers and applicant’s religious-themed camp services
which are being rendered to the parents of children
attending camp.
In summary, we find that neither applicant’s wholesale
distributorship services, as recited in the pleaded
registrations, nor opposer’s business consultation services,
for which it has made common law use of the mark SPORTSLIFE
in connection therewith, have any viable connection with
applicant’s 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 services’ 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 parties’ marks are used in
connection with the respective services.
Decision: The opposition is dismissed. The
application will be forwarded for issuance of registration.