Striker Brands LLC

Trademark Trial and Appeal Board

Aug 23, 2019

87552915 (T.T.A.B. Aug. 23, 2019)

This Opinion is not a
Precedent of the TTAB
Mailed: August 23, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Striker Brands LLC.
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Serial No. 87552915
_______

Tye Biasco of Patterson Thuente Pedersen, P.A.
for Striker Brands LLC.

Andrew Leaser, Trademark Examining Attorney, Law Office 117,
(Hellen M. Bryan-Johnson, Managing Attorney).
_______

Before Cataldo, Shaw and Hudis,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:
Applicant, Striker Brands LLC, filed an application to register on the Principal
Register the mark HYDRAPORE (in standard characters) identifying
Breathable waterproof fabric sold as an integral component of fishing
and hunting apparel, namely, coats, jackets, bib overalls, vests, pants,
hoodies, sweatshirts, shirts, base layer tops and bottoms, mid layer tops
and bottoms, gloves, mittens, balaclavas, scarves, bandanas, gaiters,
shoes, boots, socks, hats, caps, beanies, and rain wear; breathable
waterproof fabric sold as an integral component of wear, namely, shirts,
jackets, sweatshirts, hoodies, pants, shorts, gloves, mittens, scarves,
bandanas, hats, caps, beanies, and rain wear

Serial No. 87552915
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in International Class 25.1
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the cited registered mark HYDRO PORE (in standard
characters) identifying, “Clothing, namely, tops, bottoms, jackets, headwear, and
footwear” in International Class 25.2
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. We affirm the refusal to register.
I. Evidentiary Matter
Applicant submitted eighty-eight pages of evidence as exhibits to its appeal brief.3
We hereby exercise our discretion to take judicial notice of the definitions of “hydro”
and “hydra” submitted as part of this evidence, for such probative value as they may
possess.4 To the extent the remainder of the evidence Applicant submitted with its
appeal brief is duplicative of evidence previously submitted during prosecution, we

1 Application Serial No. 87552915 was filed on August 2, 2017 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), asserting September 11, 2012 as a date of first use of
the mark in commerce.
Page references to the application record are to the downloadable .pdf version of the USPTO’s
Trademark Status & Document Retrieval (TSDR) system. References to the briefs and orders
on appeal are to the Board’s TTABVUE docket system.
2 Registration No. 5194957 issued on the Principal Register on May 2, 2017.
3 9 TTABVUE 13-101.
4 The Board may take judicial notice of dictionary definitions, including online dictionaries
which exist in printed format. See In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB
2014); In re CyberFinancial.Net Inc., 65 USPQ2d 1789, 1791 n.3 (TTAB 2002).
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need not and do not give this redundant evidence any consideration.5 Further, any of
the evidence submitted with Applicant’s appeal brief that was not previously
submitted during prosecution is untimely and will not be considered.6 See Trademark
Rule 2.142(d), 37 C.F.R. § 2.142(d); TBMP § 1203.02(e) and § 1207.01 (June 2019) and
authorities cited therein.
II. Likelihood of Confusion

We base our determination of likelihood of confusion under Trademark Act Section
2(d) on an analysis of all of the probative facts in evidence that are relevant to the
factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. __, 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Guild
Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1161-62 (Fed. Cir. 2019).
We have considered each DuPont factor that is relevant, and have treated other
factors as neutral. In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162
(Fed. Cir. 2019) (“In every case turning on likelihood of confusion, it is the duty of the
examiner, the board and this court to find, upon consideration of all the evidence,

5 The Board discourages the practice of the submission of duplicative evidence. In re SL&E
Training Stable Inc., 88 USPQ2d 1216, 1220 n.9 (TTAB 2008) (attaching as exhibits to brief
material already of record requires Board to determine whether attachments had been
properly made of record and adds to the bulk of the file); In re Thor Tech Inc., 85 USPQ2d
1474, 1475 n.3 (TTAB 2007) (attaching evidence from record to briefs is duplicative and is
unnecessary).
6 The proper procedure for an applicant or examining attorney to introduce evidence after an
appeal has been filed is to submit a written request with the Board to suspend the appeal
and remand the application for further examination. See Trademark Rule 2.142(d), 37 C.F.R.
§ 2.142(d). See also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
(TBMP) § 1207.02 (June 2019) and authorities cited therein.
Serial No. 87552915
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whether or not confusion appears likely. (Citation omitted) … In discharging this
duty, the thirteen DuPont factors ‘must be considered’ ‘when [they] are of record.’
(Citations omitted). This is true even though ‘not all of the DuPont factors are
relevant or of similar weight in every case.’ (Citations omitted).”
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”). Two key considerations are the
similarities between the marks and the relatedness of the goods. See 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.”); In re
FabFitFun, Inc., 127 USPQ2d 1670, 1672 (TTAB 2018).
A. The Goods, Channels of Trade, and Classes of Customers

The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration,” Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159
(Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62
USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918
F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). “This factor considers whether ‘the
consuming public may perceive [the respective goods or services of the parties] as
Serial No. 87552915
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related enough to cause confusion about the source or origin of the goods and
services.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1086 (Fed. Cir.
2014) (quoting Hewlett-Packard, 62 USPQ2d at 1004).
The cited registration identifies “Clothing, namely, tops, bottoms, jackets,
headwear, and footwear.” In support of the refusal of registration, the Examining
Attorney introduced with his December 3, 2018 denial of Applicant’s Request for
Reconsideration,7 the following definitions from merriam-webster.com:
top – a garment worn on the upper body;
bottom – the part of a garment worn on the lower part of the body;
headwear – apparel for the head; and
footwear – wearing apparel (such as shoes or boots) for the feet.
Applicant’s goods include “breathable waterproof fabric sold as an integral
component” of apparel, including shirts, sweatshirts and hoodies (tops); jackets; pants
and shorts (bottoms); hats, caps and beanies (headwear), as well as hunting and
fishing apparel, including, jackets, tops and bottoms, shoes and boots (footwear).
Thus, as identified, Applicant’s goods consist of “breathable waterproof fabric sold as
an integral component” of items of clothing in general as well as hunting and fishing
apparel that are included among the broadly identified tops, bottoms, jackets,
headwear and footwear identified in the cited registration. In other words,
Applicant’s fabric may be sold as components of Registrant’s goods.

7 At .pdf 7-17; 7 TTABVUE 9-19.
Serial No. 87552915
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The Examining Attorney also introduced into the record with his May 26, 2018
final Office Action,8 copies of twenty use-based, third-party registrations for marks
identifying, inter alia, fabric sold as a component of clothing as well as items of
clothing. The following examples are illustrative:
Reg. No. 3526320 for the mark CASHMERLON (in standard characters)
identifying synthetic fabric sold as a component of women’s sweaters and tops;
women’s clothing, namely, sweaters and tops;

Reg. No. 4158105 for the mark DURALOCK (in standard characters)
identifying clothing, namely, shirts, sweatshirts, pants, jackets and coats;
textile fabric sold as an integral component of finished clothing items, namely,
shirts, sweatshirts, pants, jackets and coats; and

Reg. No. 3974554 for the mark TAC DRY (in standard characters) identifying
jackets; rain wear; fabric sold as an integral component of finished clothing
items; namely, jackets, rain wear.

As a general proposition, although use-based, third-party registrations alone are not
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. See In re
Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel &
Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard, 6
USPQ2d 1467, 1470 n.6 (TTAB 1988). In this case, the totality of the dictionary and
third-party registration evidence demonstrates that consumers would readily expect
that fabrics such as breathable waterproof fabric and clothing could emanate from
the same sources.

8 At .pdf 11-62.
Serial No. 87552915
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For this reason, we are not persuaded by Applicant’s arguments regarding the
distinctions between the goods at issue:
The primary difference is that the Applicant’s mark is intended to
enable consumers to readily identify the source of the breathable
waterproof fabric, which may be used in the construction of a variety of
brands of clothing items bearing their own mark to further indicate the
source of the clothing item. Registrant’s goods, by contrast, merely
indicate the source of the clothing item, and not the source of the fabric
or material.9

Notwithstanding the distinctions between these goods, in order to support a finding
of likelihood of confusion it is not necessary that the goods be identical or even
competitive. It is sufficient that the goods are related in some manner, or that the
circumstances surrounding their marketing are such that they would be encountered
by the same persons in situations that would give rise, because of the marks, to a
mistaken belief that they originate from the same source or that there is an
association or connection between the sources of the goods. In re Thor Tech Inc., 90
USPQ2d 1634, 1635 (TTAB 2009). The evidence of record clearly establishes that
fabrics and items of clothing made of such fabric may emanate from common sources.
With regard to the channels of trade in which the goods may be encountered, the
Examining Attorney introduced website evidence with his May 26, 2018 final Office
Action10 and December 3, 2018 denial of Applicant’s Request for Reconsideration11
demonstrating that six third parties, including Eddie Bauer, Helly Hanson, Dick’s

9 Applicant’s brief; 9 TTABVUE 7.
10 At .pdf 63-65.
11 At .pdf 19-45.
Serial No. 87552915
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Sporting Goods, Marmot, REI and Patagonia, advertise both clothing items and the
waterproof and weatherproof components from which the clothing is made in whole
or in part through their internet websites, i.e., through the same trade channels to
the same purchasers. Applicant argues “[w]here the fabric is directed to
manufacturers of clothing and the clothing is sold to retailers, there may not be a
likelihood of confusion.”12 However, the above evidence of record demonstrates that
third parties advertise clothing designed to withstand weather along with the
weather resistant fabrics from which they are constructed to retail consumers seeking
durable clothing intended to protect the wearer from the elements.13
Evidence of record demonstrates that both Applicant’s goods and Registrant’s
goods may be encountered by the same classes of consumers often under the same
marks in at least one common trade channel, i.e., the physical locations and
corresponding websites of weather resistant clothing and fabric producers and sellers.
In addition, the identifications of goods in the cited registration and involved
application do not recite any limitations as to the channels of trade in which the goods
are or will be offered. In the absence of trade channel limitations on the goods offered
under the applied-for and registered marks, we must presume that these goods are
offered in all customary trade channels. See Citigroup v. Capital City Bank Grp., 98
USPQ2d at 1261; In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006).

12 Applicant’s brief; 9 TTABVUE 7-8.
13 We observe that some of these items of clothing and weather resistant fabrics are marketed
under different names. Nonetheless, the clothing and fabrics are marketed together in
advertisements directed toward end consumers, that is, retail purchasers of weather
resistant clothing.
Serial No. 87552915
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We find that the DuPont factors of the relatedness of the goods, channels of trade
and consumers weigh in favor of likelihood of confusion.
B. Strength of the Cited Mark / Number and Nature of Similar Marks
We next evaluate the strength of the registered mark and the scope of protection
to which it is entitled. The fifth DuPont factor is the “fame” or strength of the prior
mark, and the sixth factor is the number and nature of similar marks in use for
similar goods or services. DuPont, 177 USPQ at 567. In determining strength of a
mark, we consider both inherent strength, based on the nature of the mark itself, and
commercial strength or recognition. In re Chippendales USA Inc., 622 F.3d 1346, 96
USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its
conceptual strength (distinctiveness) and its marketplace strength (secondary
meaning).”).
Turning first to inherent strength, the Examining Attorney submitted with his
final Office Action14 the following definitions from merriam-webster.com:
• hydr – water; liquid; and
• pore – a minute opening especially in an animal or plant; especially one
by which matter passes through a membrane.
As noted above, we have taken judicial notice of the following definitions from
dictionary.com submitted by Applicant with its brief:15

14 At .pdf 7-8.
15 Applicant’s brief; 9 TTABVUE 14-29. (Random House Unabridged Dictionary 2019).
Serial No. 87552915
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• hydro – hydroelectric power; a combining form meaning “water,” used in
the formation of compound words; and
• hydra – a water or marsh serpent with nine heads; a persistent or many-
sided problem that presents new obstacles as soon as one aspect is
solved.
Based upon these definitions, the registered mark HYDRO PORE suggests a
membrane with minute openings to permit water to pass through, and thus appears
to suggest a function or feature of the clothing items identified thereby. There is no
evidence regarding the registered mark’s commercial or marketplace strength.16
In support of its argument that the cited HYDRO PORE mark is commercially
weak, Applicant submitted with its November 2, 2018 Request for Reconsideration17
copies of 33 third-party registrations consisting of marks retrieved from a search of
the USPTO’s Trademark Electronic Search System (TESS) for “HYDRO” formative
marks identifying various types of apparel or fabric. These registrations all identify

16 Because of the nature of the evidence required to establish the fame of a registered mark,
the Board normally does not expect the examining attorney to submit evidence as to the fame
of the cited mark in an ex parte proceeding. See In re Thomas, 79 USPQ2d 1021, 1027 n.11
(TTAB 2006).
17 At .pdf 12-47; 4 TTABVUE 12-47. The marks include: HYDROMAX 2100;
HYDROMOVE; HYDROSKIN; HYDROSPEED; HYDRO-DRI; HYDROHALT;
HYDROCORE; HYDROCHIC; HYDROSEAL; HYDRO BREEZE; HYDROTRAK; HYDRO; S
HYDRO-GEAR and design; HYDRO-GEAR; HYDROFREAK; HYDROWARMER;
HYDROLOFT; HYDRO DOWN; HYDROSHELL; HYDRO CARE LIQUID REPELLENT and
design; HYDROCORE; HYDROCARBON CLOTHING; HYDROGAUGE; HYDROBASE;
HYDROSTOP; HYDROACTIVE (in two registrations owned by the same entity); HYDRO
POWER SUPPLY; HYDROFLX; HYDROHUSH BY DRAKE; HYDRO HIGH; HYDROHIGH
and design; and HYDROFLY.

Serial No. 87552915
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clothing items or fabrics under marks beginning with “HYDRO” and a following term
or terms. However, the marks all differ from the registered mark inasmuch as none
includes the following term “PORE” or a term that sounds or appears similar to
“PORE.”
As noted above, we find that the registered mark is at least suggestive as applied
to the identified goods. There is no evidence of third-party use; however, there is
evidence of third-party registrations of less similar marks for various clothing
products or fabrics. Cf. Juice Generation, Inc. v. GS Enters LLC, 794 F.3d 1334, 115
USPQ2d 1671, 1674-75 (Fed. Cir. 2015); Jack Wolfskin Ausrustung Fur Draussen
GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d
1129, 1135-36 (Fed. Cir. 2015). We therefore find that the registered HYDRO PORE
mark is to be accorded a somewhat narrower scope of protection than that to which
inherently distinctive marks are normally entitled due to the presence of the third-
party registrations of HYDRO formative marks for clothing products and fabrics. See
Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122
USPQ2d 1733, 1734 (Fed. Cir. 2017) (stating that likelihood of confusion fame varies
along a spectrum from very strong to very weak).
C. The Marks

Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1160; Palm Bay Imps., Inc.
Serial No. 87552915
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v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1692 (Fed. Cir. 2005). “Similarity in any one of these elements may be sufficient
to find the marks confusingly similar.” In re Davia, 110 USPQ2d 1810, 1812 (TTAB
2014); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523,
526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound
alone is likely to cause confusion.”) (citation omitted).” In re Inn at St. John’s, LLC,
126 USPQ2d 1742, 1746 (TTAB 2018). “The proper test is not a side-by-side
comparison of the marks, but instead whether the marks are sufficiently similar in
terms of their commercial impression such that persons who encounter the marks
would be likely to assume a connection between the parties.” Coach Servs. Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)
(internal quotation marks omitted). See also Mini Melts, Inc. v. Reckitt Benckiser
LLC, 118 USPQ2d 1464, 1470 (TTAB 2016); In re Mr. Recipe, LLC, 118 USPQ2d 1084,
1089 (TTAB 2016). Consumers may not necessarily encounter the marks in proximity
to one another and must rely upon their recollections thereof over time. In re Mucky
Duck Mustard, 6 USPQ2d at 1468.
Turning now to the marks at issue, we find Applicant’s HYDRAPORE mark to be
nearly identical in appearance to the registered HYDRO PORE mark. Both marks
are a portmanteau consisting of three syllables and the terms “HYDR-” and “PORE,”
the only difference being the center vowel A and O, respectively, comprising the
middle syllable. The marks are nearly identical in sound, the different center vowel
providing only a slight difference in pronunciation. The only other difference between
Serial No. 87552915
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the marks is the presence of a space in the registered mark. The presence or absence
of a space between nearly identical words is not a significant difference. Cf. Stockpot,
Inc. v. Stock Pot Rest., Inc., 220 USPQ 52, 54 (TTAB 1983), aff’d, 737 F.2d 1576, 222
USPQ 665 (Fed. Cir. 1984) (“There is no question that the marks of the parties
[STOCKPOT and STOCK POT] are confusingly similar. The word marks are
phonetically identical and visually almost identical”); In re Best W. Family Steak
House, Inc., 222 USPQ 827, 827 (TTAB 1984) (“There can be little doubt that the
marks [BEEFMASTER and BEEF MASTER] are practically identical”).
With regard to meaning, Applicant argues that the differences between HYDRO
and HYDRA “significantly changes how the marks are perceived.”18 However, the
marks at issue do not consist solely of the terms HYDRO and HYDRA but are
HYDRAPORE and HYDRO PORE. There is no evidence in the record regarding the
extent to which consumers perceive the meaning of either coined mark or have been
conditioned to perceive their meaning as the result of marketing efforts. It further is
not clear to what extent consumers will note the difference in the center vowel of the
marks such that they would ascribe differences in their meaning. In addition, and as
noted above, the Examining Attorney introduced a definition of HYDR as water or
liquid. Thus, consumers may view both marks as connoting minute spaces in a
membrane allowing water or liquid to pass through.
We find as a result that Applicant’s HYDRAPORE mark is nearly identical to the
HYDRO PORE mark in the cited registration in appearance and sound. To the extent

18 Applicant’s brief; 9 TTABVUE 6.
Serial No. 87552915
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consumers may ascribe somewhat different meanings to the marks based upon
differences in the definitions of HYDRA and HYDRO, such potential differences are
not sufficient to create dissimilar commercial impressions between the marks,
particularly given that consumers may also view the marks as having the same
meaning. “In any event, it is recognized that there is no correct pronunciation of a
trademark.” Kabushiki Kaisha Hattori Seiko v. Satellite Int’l Ltd., 29 USPQ2d 1317,
1318 (TTAB 1991) (citing In re Belgrade Shoe Co., 411 F.2d 1352, 162 USPQ 227
(CCPA 1969)), aff’d mem., Satellite Int’l Ltd. v. Kabushiki Kaisha Hattori Seiko, 979
F.2d 216 (Table).
In coming to our determination on the similarity of the marks, we again
emphasize that the applicable test is not whether the marks can be distinguished
when subjected to a side-by-side comparison. Spoons Rests. Inc. v. Morrison Inc., 23
USPQ2d 1735, 1741 (TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir. June 5,
1992). Rather, the proper focus is on the recollection of the average customer, who
retains a general rather than specific impression of the marks. Winnebago Indus.,
Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
For these reasons, we find that the marks are far more similar than dissimilar.
The first DuPont factor thus also weighs in favor of finding a likelihood of confusion.
D. Conclusion
When we consider the record and the relevant likelihood of confusion factors, and
all of Applicant’s arguments relating thereto, including any arguments and evidence
Serial No. 87552915
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not specifically addressed herein, we conclude that consumers familiar with
Registrant’s goods offered under its mark would be likely to believe, upon
encountering Applicant’s mark, that the goods originated with or are associated with
or sponsored by the same entity.
Decision: The refusal to register Applicant’s proposed mark is affirmed under
Section 2(d) of the Trademark Act.