TBT Licensing I, LLCv.Carl Walther GmbH

Trademark Trial and Appeal Board

Aug 10, 2021

91244468 (T.T.A.B. Aug. 10, 2021)

Mailed: August 10, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

TBT Licensing I, LLC

v.

Carl Walther GmbH
_____

Opposition No. 91244468
_____

Jon A. Schiffrin of Schiffrin & Longo, P.C.,
for TBT Licensing I, LLC.

Joshua Paul and John F. Renzulli of Renzulli Law Firm LLP,
for Carl Walther GmbH.
_____

Before Mermelstein, Wolfson, and Pologeorgis,
Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:
Applicant, Carl Walther GmbH, seeks registration on the Principal Register of the
mark (the “WALTHER Banner Logo”)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91244468
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for
clothing, namely, shirts, t-shirts, jerseys, hooded
sweatshirts, sweatshirts; hats; caps being headwear;
(based on Section 1(a), 15 U.S.C. § 1051(a)); and
clothing, namely, scarves, head scarves, neckties, mufflers,
neck scarves, socks, polo shirts, gloves, performance
underwear, stockings, trousers, vests, jackets, suspenders;
clothing for shooting, namely, vests and jackets for
shooting, trousers for shooting, and gloves for shooting;
headwear, namely, headbands; headwear, namely, caps for
shooting; footwear, namely, shoes; footwear, namely, boots
for shooting (based on Section 44(e), 15 U.S.C. § 1126(e))
in International Class 25.1
TBT Licensing I, LLC (“Opposer”) opposes registration of Applicant’s mark,
claiming likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), and alleging prior use and registration of the following marks (collectively,
“Opposer’s Marks”):2
 WALTER, in standard characters, for “Women’s dresses, blouses, jackets,
pants, skirts,” in International Class 25;3

1 Application Serial No. 8745476, filed May 18, 2017, pursuant to Trademark Act § 1(a), 15
U.S.C. § 1051(a), based on Applicant’s first use and first use in commerce of January 1, 2014
as to “clothing, namely, shirts, t-shirts, jerseys, hooded sweatshirts, sweatshirts; hats; caps
being headwear” and pursuant to Trademark Act § 44(e), 15 U.S.C. § 1126(e), based on
European Union registration No. 5789536, registered March 27, 2008 for the remaining
goods. The application contains a description of the mark statement that “[t]he mark consists
of a stylized banner design with the wording ‘WALTHER’ inside of the banner.” Color is not
claimed as a feature of the mark.
2 Opposer claims unity of control among the owners of these marks as a result of their
corporate status as sister companies owned by WW LLC. This issue is discussed more fully
infra.
3 Registration No. 3103294; issued June 13, 2006; renewed.
Opposition No. 91244468
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 WALTER BAKER, in standard characters, for “Women’s dresses,
blouses, jackets, pants, skirts,” in International Class 25; 4
 VIEW BY WALTER, in standard characters, for “Blouses; Coats for men
and women; Dresses; Evening dresses; Footwear for women; Men and
women jackets, coats, trousers, vests; Men’s suits, women’s suits; Skirts
and dresses; Women’s shoes,” in International Class 25; 5 and
 W118 BY WALTER BAKER, in standard characters, for “clothing,
namely, dresses, blouses, pants, jeans, skirts, shirts, suits, sweaters,
belts, vests, shorts, jackets and coats,” in International Class 25.6
1 TTABVUE.
As further grounds for opposition, Opposer claims that Applicant’s mark is merely
ornamental and fails to function as a trademark in connection with apparel pursuant
to Trademark Act Sections 1, 2, and 45; 15 U.S.C. §§ 1051, 1052 and 1127.
In its answer, Applicant admitted that Opposer owns Reg. No. 3103294, 18
TTABVUE 2, and that Opposer’s sister companies own the other pleaded
registrations. Id. at 3. Applicant otherwise denied the salient allegations in the Notice
of Opposition and asserted that Opposer failed to state a claim upon which relief may
be granted.

4 Registration No. 3103295; issued December 3, 2004; renewed. The registration includes the
statement: “The name ‘WALTER BAKER’ identifies a living individual whose consent is of
record.”
5 Registration No. 3265169; issued July 17, 2007; renewed.
6 Registration No. 4542714; issued December 8, 2015; Sections 8 and 15 combined declaration
accepted and acknowledged. The registration includes the statement: “The name(s),
portrait(s), and/or signature(s) shown in the mark identifies ‘Walter Baker’, whose consent(s)
to register is made of record.”
Citations to the briefs refer to TTABVUE, the Board’s online docketing system. See Turdin
v. Trilobite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the number
preceding “TTABVUE” corresponds to the docket entry number, and any number(s) following
“TTABVUE” refer to the page number(s) of the docket entry where the cited materials appear.
Opposition No. 91244468
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Prior to answer, Applicant filed a motion to dismiss, alleging that Opposer failed
to properly assert a family of marks, or claim any of the pleaded registrations
individually, as a basis for opposition.7 The Board, in denying Applicant’s motion to
dismiss, found that Opposer had adequately pleaded ownership of a family of marks
based on the term WALTER as the common characteristic of the family. 11
TTABVUE 5. The Board, however, made it clear that Opposer would be held to prove
its priority and “whether there is a likelihood of confusion based on its purported
family of marks” at final hearing. Id. at n.4.
The Board also found that “a separate likelihood of confusion claim based on the
Opposer-owned registration [No. 3103294 for WALTER] and common law rights, has
been properly pleaded.” Id. The Board did not address the other pleaded registrations.
Opposer has not pursued its claims to a family of “WALTER” marks or that
Applicant’s mark is merely ornamental or fails to function as a trademark.
Accordingly, these claims are waived. Joel Gott Wines LLC v. Rehoboth Von Gott Inc.,
107 USPQ2d 1424, 1426 n.3 (TTAB 2013) (claim not argued in brief is considered
waived). As for the registrations pleaded in their individual capacities, Opposer has
pursued its likelihood of confusion claim based on Reg. No. 3103294 for the mark
WALTER.
Although Adam Blalock, Chief Executive Officer of Umarex USA, Inc. and
Walther Arms, Inc., testified that “Applicant and Umarex jointly exercise a unity of

7 Applicant had also asserted that Opposer’s ornamentation/failure to function claim was
insufficient but the Board found the claim sufficiently pleaded. 11 TTABVUE 7.
Opposition No. 91244468
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control over use of the WALTHER Banner Logo based on common management
control of the companies,” Blalock Decl., 32 TTABVUE 14, Opposer has not proven
that the registrations owned by its “sister companies” are subject to its (or any
company’s) unity of control such that the benefit of use of the marks would inure to
Opposer. Accordingly, Opposer has failed to demonstrate a legally cognizable interest
in any but Reg. No. 3103294.
Regardless, if likelihood of confusion is not found as to WALTER, the mark of this
registration, it would be unnecessary to consider the other registrations, as Opposer’s
mark WALTER is closest to Applicant’s mark than are any of the other marks, which
each include additional distinguishing words. See In re St. Julian Wine Co., 2020
USPQ2d 10595 (TTAB 2020); In re I-Coat Co., LLC, 126 USPQ2d 1730, 1734 (TTAB
2018). Accordingly, we focus our analysis on Opposer’s mark WALTER and the goods
of Reg. No. 3103294.
I. The Record
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of the subject application.8 Also of record is a jointly filed
addendum to the Board Standard Protective Order, whereby the parties and their
counsel certified and agreed that they “will continue to abide by all terms of the
Board’s Order even after this proceeding has terminated.” 24 TTABVUE 2. The

8 It was therefore unnecessary for Opposer to file copies of the trademark file history for
Applicant’s application.
Opposition No. 91244468
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parties also jointly filed copies of three of Opposer’s catalogs from 2020, under
stipulation as to the authenticity thereof. 37 TTABVUE 5-29.
The parties filed the following additional evidence:
A. Opposer
With its Notice of Opposition, Opposer attached TSDR printouts showing status
and title in Opposer of pleaded Registrations Nos. 3103294, 3103295, 3265169, and
4542714. 1 TTABVUE 5-22. Opposer filed a First Notice of Reliance on copies of the
trademark file histories for these pleaded registrations.9
Also under cover of its First Notice of Reliance, Opposer filed a printout from TESS
of a list of three registered marks, purporting to show the strength of Opposer’s mark.
29 TTABVUE 2. Opposer also filed a Rebuttal Notice of Reliance on Internet
materials purporting to assess the significance of the names Walter and Walther. 39
TTABVUE.

9 Applicant objected to the admissibility of Opposer’s pleaded registrations, other than the
one that issued in Opposer’s name, on the ground that Opposer has not shown unity of control
among the “sister companies.” 12 TTABVUE 41. The objection is overruled as the registration
copies and their file histories were properly produced pursuant to Trademark Rule 2.122(e),
37 C.F.R. § 2.122(e) (official records). Nonetheless, the evidence does not establish that unity
of control is present. See In re Wella A.G., 5 USPQ2d 1359, 1361 (TTAB 1987), rev’d on other
grounds, 858 F.2d 725, 8 USPQ2d 1365 (Fed. Cir. 1988) (finding unity of control where the
applicant, Wella AG, owned substantially all of the outstanding stock of the registrant, Wella
(USA), and “thus control[led] the activities and operations of Wella U.S., including the
selection, adoption and use of the trademarks”). Here, despite Mr. Blalock’s assertion that
Umarex and Applicant “jointly exercise a unity of control” based on “common management,”
32 TTABVUE 14, Opposer has not shown that it controls the activities or operations of its
sister companies, including the selection, adoption or use of the marks.
Applicant further objected to Exhibit F (TESS search) attached to Opposer’s rebuttal Notice
of Reliance. Id. at 13. The objection is also overruled because TESS search results are official
records. Trademark Rule 2.122(e).
Opposition No. 91244468
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B. Applicant
Applicant filed two testimony declarations:
 Adam Blalock, Chief Executive Officer of Umarex USA, Inc. and Walther
Arms, Inc., “both of which, like Applicant, are members of the Umarex
Group of companies.” 32 TTABVUE 2.10 Exhibits 1-21 accompanied the
testimony. Id. at 15-165.

 Gavin M. Strube, counsel for Applicant, and accompanying Exhibits 1-28.
34 TTABVUE 3-114.
Applicant filed a First Notice of Reliance on third-party applications and
registrations purporting to show the weakness of Opposer’s mark, 33 TTABVUE 9-
123; and on registrations and applications owned by Applicant and Umarex GmbH &
Co., KG, 33 TTABVUE 124-171, purporting to show the strength of the design portion
of Applicant’s mark.
Applicant filed a Second Notice of Reliance on Opposer’s responses to Applicant’s
interrogatories, requests for admission, and document production requests. 35
TTABVUE 1-88, Exhibits A-E.
Applicant filed a Third Notice of Reliance on Internet materials consisting of
dictionary definitions and online baby name resources. 36 TTABVUE 2-71.
II. Entitlement to a Statutory Cause of Action
Entitlement to a statutory cause of action is a threshold issue in every inter partes
case. See Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370,
2020 USPQ2d 10837, *3 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control

10 A confidential version of Mr. Blalock’s testimony was filed at 31 TTABVUE 3-165.
Opposition No. 91244468
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Components, Inc., 572 U.S. 118, 109 USPQ2d 2061, 2067 n.4 (2014)).11 A party in the
position of plaintiff may oppose registration of another’s mark where such opposition
is within the zone of interests protected by the statute, 15 U.S.C. § 1063, and the
plaintiff’s reasonable belief in damage is proximately caused by registration of the
defendant’s mark. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d
11277, *6-7 (Fed. Cir. 2020).
Opposer’s statutory entitlement to oppose registration of Applicant’s mark is
established by its pleaded registration for the mark WALTER, Reg. No. 3103294,
which is properly of record and acknowledged by Applicant as valid and owned by
Opposer. This registration forms the basis for a likelihood of confusion claim under
15 U.S.C. § 1052(d) that is not wholly without merit. Lipton Indus., Inc. v. Ralston
Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). See also Coach Servs.,
Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1727-28 (Fed. Cir.
2012). Moreover, Applicant does not dispute Opposer’s entitlement to a statutory
cause of action.
III. Likelihood of Confusion
A. Priority
Because Opposer’s pleaded registration is of record, and Applicant did not
counterclaim to cancel it, priority is not at issue as to the mark WALTER and the

11 Board decisions have previously analyzed the requirements of Sections 13 and 14 of the
Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” Despite the change in
nomenclature, our prior decisions and those of the Federal Circuit interpreting Section 13
and 14 remain applicable. See Spanishtown Enters., Inc. v. Transcend Resources, Inc., 2020
USPQ2d 11388, *2 (TTAB 2020).
Opposition No. 91244468
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goods covered thereby: “Women’s dresses, blouses, jackets, pants, skirts.” King Candy
Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974);
L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1436 n.7 (TTAB 2012). As to Opposer’s
claim to common law use of its mark, Opposer’s evidence of common law use of its
mark dates from 2020, which does not pre-date May 18, 2017, the filing date of
Applicant’s application and its constructive use date. Accordingly, Opposer has not
demonstrated common law use of its mark for priority purposes, and relies solely on
its pleaded registration.
B. Applicable Law
Our determination of likelihood of confusion is based on an analysis of all the
probative facts in evidence that are relevant to the factors set forth in In re E. I. du
Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973) (“DuPont”). See
also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003).
We make that determination on a case-by-case basis, On-Line Careline Inc. v. Am.
Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1474 (Fed. Cir. 2000), aided by the
application of the factors set out in DuPont, and 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 (Fed. Cir. 2019); In re Country Oven, Inc., 2019 USPQ2d 443903,
*2 (TTAB 2019).
“Not all DuPont factors are relevant in each case and the weight afforded to each
factor depends on the circumstances. … Any single factor may control a particular
case.” Stratus Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994, 2020
Opposition No. 91244468
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USPQ2d 10341, *3 (Fed. Cir. 2020). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the similarities between
the goods. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945 (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.”). See also In re i.am.symbolic, llc, 866 F.3d 1315, 123
USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers
all DuPont factors for which there is record evidence but ‘may focus … on dispositive
factors, such as similarity of the marks and relatedness of the goods’”) (quoting
Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed.
Cir. 2002)).
C. Relatedness of the Goods
The second DuPont factor concerns the similarity or dissimilarity and nature of
the goods as described in Applicant’s application and Opposer’s Reg. No. 3103294.
See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1159 (Fed. Cir. 2014). “The goods need only be sufficiently related
that consumers would be likely to assume, upon encountering the goods under
similar marks, that the goods originate from, are sponsored or authorized by, or are
otherwise connected to the same source.” In re Davia, 110 USPQ2d 1810, 1815
(TTAB 2014) (citing Coach Servs., 101 USPQ2d at 1722); see also In re St. Helena
Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1086 (Fed. Cir. 2014) (this factor considers
Opposition No. 91244468
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whether the consuming public may perceive the respective goods of the parties as
related enough to cause confusion about their source or origin).
Applicant’s “jackets” are unrestricted and encompass Opposer’s more narrowly
defined “women’s jackets.” Applicant’s “trousers” are likewise unrestricted and
encompass Opposer’s “women’s pants,” trousers and pants being equivalent terms
for outer leg coverings.12 Where the description of goods in an application or
registration broadly identifies the products, without limitation, we must presume
that the goods encompass all products of the type identified. See In re Solid State
Design Inc., 125 USPQ2d 1409, 1412-15 (TTAB 2018) (where the goods in an
application or registration are broadly described, they are deemed to encompass all
the goods of the nature and type described therein). Based on the plain wording of
the respective identifications, the involved goods are, in part, legally identical.
There is no need for us to further consider the relatedness of Applicant’s goods
with the other goods identified in Opposer’s Reg. No. 3103294. “It is sufficient for
finding a likelihood of confusion if relatedness is established for any item
encompassed by the identification of goods within a particular class in the
application.” In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015) (citing
Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988

12 Merriam-webster.com defines “trouser” as “PANTS sense 1-usually used in plural,” and
defines “Pants sense 1” as “an outer garment covering each leg separately and usually
extending from the waist to the ankle.” At https://www.merriam-
webster.com/dictionary/trousers and https://www.merriam-webster.com/dictionary/
pants#h1, accessed August 5, 2021. 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).
Opposition No. 91244468
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(CCPA 1981) (likelihood of confusion must be found if there is likely to be confusion
with respect to any item that comes within the identification of goods or services in
the application)). Nonetheless, we find that the remaining goods are related.
As Applicant recognizes, only some of the named clothing items in its application
are limited as being “for shooting;” the remaining goods are unrestricted as to, for
example, style, type, or gender. Applicant’s “shirts,” being unrestricted as to whether
men’s or women’s items, are functionally equivalent to “women’s blouses.”
Applicant’s “scarves,” “gloves,” and “stockings,” being similarly unrestricted, are
likely to be purchased and used together with Opposer’s women’s dresses, blouses,
and skirts. These items are thus considered complementary. In re Davia, 110
USPQ2d at 1815 (“conjoint use is a fact proper to be considered along with other
facts present in particular cases”); see also In re Martin’s Famous Pastry Shoppe,
Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984) (“[T]he products ‘bread’ and
‘cheese’ are often used in combination. Such complementary use has long been
recognized as a relevant consideration in determining a likelihood of confusion.”).
We find the identity of the goods in part, and the otherwise related nature of the
goods, favors a finding of likelihood of confusion.
D. Trade Channels and Classes of Consumers
The third DuPont factor concerns “[t]he similarity or dissimilarity of established,
likely-to-continue trade channels.” Stone Lion, 110 USPQ2d at 1161 (quoting DuPont,
177 USPQ at 567). Because the goods described in Applicant’s application and
Opposer’s Reg. No. 3103294 are in-part legally identical, we must presume that the
Opposition No. 91244468
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channels of trade and classes of purchasers for those goods are the same. See Am.
Lebanese Syrian Assoc. Charities Inc. v. Child Health Research Inst., 101 USPQ2d
1022, 1028 (TTAB 2011); see also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1908 (Fed. Cir. 2012) (finding Board entitled to rely on this legal presumption in
determining likelihood of confusion); Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268
(TTAB 2003) (“Given the in-part identical and in-part related nature of the parties’
goods, and the lack of any restrictions in the identifications thereof as to trade
channels and purchasers, these clothing items could be offered and sold to the same
classes of purchasers through the same channels of trade”).
The remaining goods, being unrestricted, are presumed to travel through all
normal and usual trade channels for such goods, and be sold to all classes of
prospective purchasers for those goods. Stone Lion, 110 USPQ2d at 1161; see also
Coach Servs., 101 USPQ2d at 1723 (absent limitation, “goods are presumed to travel
in all normal channels ... for the relevant goods.”). In an apparent attempt to rebut
this presumption, Applicant asserts that its clothing is ancillary to its core line of
business, namely the sale of firearms and other guns, and that “Walther Arms makes
WALTHER brand clothing available to consumers through only two distribution
channels,” namely, through authorized retailers of WALTHER firearms and through
Walther Arm’s website.
Setting aside the fact that Applicant has not proven that sales by Walther Arms
inures to Applicant’s benefit,13 the “authority is legion that the question of

13 Adam Blalock, CEO of Umarex USA, Inc. and Walther Arms, Inc., testified that “Applicant
is a member of the Umarex Group of companies,” 31 TTABVUE 10, and states that Umarex
Opposition No. 91244468
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registrability of an applicant’s mark must be decided on the basis of the identification
of goods set forth in the application[,] regardless of what the record may reveal as to
the particular nature of an applicant’s goods… .” Real Foods Pty Ltd. v. Frito-Lay N.
Am., Inc., 906 F.3d 965, 128 USPQ2d 1370, 1379 (Fed. Cir. 2018) (citing In re Cordua
Rest., 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016) (internal quotation marks and
citation omitted); see also Stone Lion, 110 USPQ2d at 1161-62 (“the question of
registrability of an applicant’s mark must be decided on the basis of the identification
of goods set forth in the application”); In re La Peregrina Ltd., 86 USPQ2d 1645, 1647
(TTAB 2008) (“it is the identification of goods that controls, not what extrinsic
evidence may show about the specific nature of the goods.”).
We find that the presumed overlapping channels of trade and consumers weigh in
favor of likelihood of confusion.
E. Similarity of the Marks
We next compare Applicant’s and Opposer’s marks “in their entireties as to
appearance, sound, connotation and commercial impression.” Palm Bay Imps., Inc. v.
Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 73 USPQ2d 1689,
1692 (Fed. Cir. 2005) (quoting DuPont, 177 USPQ at 567). 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

GmbH & Co. KG of Arnsberg, Germany and Applicant “jointly exercise a unity of control over
use of the WALTHER Banner logo and other trademarks based on common management
control of the companies.” Id. at 14. Applicant has provided no evidence to explain how, if at
all, Walther Arms and Applicant are related.
Opposition No. 91244468
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encounter the marks would be likely to assume a connection between the parties.”
Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018)
(quoting Coach Servs., 101 USPQ2d at 1721; see also Double Coin Holdings Ltd. v.
Tru Dev., 2019 USPQ2d 377409, *6 (TTAB 2019).
The proper focus is on the recollection of the average customer, who retains a
general rather than specific impression of the marks. Geigy Chem. Corp. v. Atlas
Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v.
Marcon, 102 USPQ2d at 1438. Because Opposer’s goods are women’s dresses, blouses,
jackets, pants, and skirts, and Applicant’s goods include common clothing items, the
average customer is an ordinary consumer. We are further mindful that where, as
here, Applicant’s goods are legally identical in part to Opposer’s goods, the degree of
similarity between the marks as to such goods, which is required to support a finding
of likelihood of confusion, is less than it would be if the goods were not the same.
Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d
1698 (Fed. Cir. 1992); see also, In re Mighty Leaf Tea, 601 F.3d 1342, 1348, 94
USPQ2d 1257, 1260 (Fed. Cir. 2010); In re Dixie Rests., Inc., 105 F.3d 1405, 1408, 41
USPQ2d 1531, 1534 (Fed. Cir. 1997).
Applicant is seeking to register the mark and Opposer’s mark is
WALTER. The marks are strikingly similar in appearance and pronunciation.
WALTER and WALTHER differ by only a single letter, which is embedded within the
term. To the extent consumers even notice this middle letter “h,” it affects the
Opposition No. 91244468
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pronunciation of the word very slightly, and barely changes its appearance from that
of WALTER.
A point of dissimilarity between Applicant’s and Opposer’s marks is the banner
element of Applicant’s mark, . Applicant asserts that the banner element of
its mark is not a mere carrier for the literal portion of its mark because it has been
registered on the Principal Register, and because “Opposer offers no proof of similar
banner-like design elements in composite marks in the clothing field.” 41 TTABVUE
36.14 Applicant argues that due to the presence of the banner element and
“undulating, wavy pattern” of the Walther name, the visual impact of the mark “is
unusual and striking” and a likelihood of confusion is avoided. 41 TTABVUE 35.
We are not persuaded by Applicant’s arguments. First, it is irrelevant whether
Applicant’s banner is common in the clothing field. Pursuant to Trademark Act
Section 7(b), 15 U.S.C. § 1057(b), “[w]e presume the mark is inherently distinctive--
at least suggestive--because it is registered on the Principal Register.” Sock It to Me
v. Aiping Fan, 2020 USPQ2d 10611 at *10 (TTAB 2020); see also New Era Cap Co. v.
Pro Era, LLC, 2020 USPQ2d 10596 at *10 (TTAB 2020) (“Opposer’s mark is
inherently distinctive as evidenced by its registration on the Principal Register

14 Reg. No. 3038946 was registered on the Principal register on January 10, 2006, for “toy
weapons, namely, toy replicas of weapons” in the name of Carl Walther GmbH (Applicant).
The registration has been renewed. We note that Applicant also owns Reg. No. 5494040 for
the design mark for clocks; jewelry; watches,” which registered on the Supplemental Register
on June 1, 2018. It has been renewed. A copy of the registration is of record at 33 TTABVUE
125-28.
Opposition No. 91244468
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without a claim of acquired distinctiveness under Section 2(f) of the Trademark Act.”)
(citing Tea Bd. of India v. Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB 2006).
Second, we see no reason to deviate from the general principle that normally
accords greater weight to the words in a mark consisting of words and a design.
Basing our decision on the entirety of Applicant’s mark, we find the word WALTHER
is the dominant feature. Stone Lion, 110 USPQ2d at 1161 (although our analysis
cannot be predicated on dissecting the marks into their various components; that is,
the decision must be based on the entire marks, not just part of the marks, “there is
nothing improper in stating that . . . more or less weight has been given to a particular
feature of a mark, provided the ultimate conclusion rests on consideration of the
marks in their entireties.” (citing In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985)). Here, WALTHER is “the portion most likely ‘to be
impressed upon the mind of a purchaser and remembered’ because it “would be used
by consumers to request the products.” Joel Gott Wines, LLC v. Rehoboth Von Gott,
Inc., 107 USPQ2d 1424, 1430-31 (TTAB 2013) (quoting Presto Prods., Inc. v. Nice-Pak
Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) and In re Dakin’s Miniatures, Inc.,
59 USPQ2d 1593, 1596 (TTAB 1999)). See also In re Viterra, 101 USPQ2d at 1908
(“In the case of a composite mark containing both words and a design, ‘the verbal
portion of the mark is the one most likely to indicate the origin of the goods to which
it is affixed.’”).
As noted, WALTER and WALTHER are similar in sight and sound. As for the
connotation of each, the parties do not dispute that WALTER is a common boy’s name,
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and neither Applicant nor Opposer has presented an alternative meaning to
WALTHER apart from that of being a German surname.15 Although Applicant
contends that Opposer failed to invoke the doctrine of foreign equivalents to show
that Walther is equivalent to Walter in German, the doctrine of foreign equivalents
“generally [does] not apply to first names … that are widely recognizable to American
consumers… .” Ricardo Media Inc. v. Inventive Software, LLC, 2019 USPQ2d 311355
at *6 (TTAB 2019) (finding it “unlikely” that consumers would “stop and translate” a
common personal name used as a mark). Moreover, the USPTO “continues to view
personal names as inherently distinctive and registrable on the Principal Register.”
Brooks v. Creative Arts By Calloway, LLC, 93 USPQ2d 1823, 1830 (TTAB 2009).
Nonetheless, Applicant argues that Opposer’s mark is commercially weak as a
large number of unrelated third parties use and have registered marks containing
the term “Walter” for similar goods. 41 TTABVUE 30. In support, Applicant
submitted TSDR printouts for 14 third-party registrations of marks including the
term16 and pages from company websites for six of these marks showing that they are
in use on clothing.17 The six marks for which registration and use has been shown
are:
 Reg. No. 3870490 for the mark WALTER for “clothing,
namely, t-shirts,” registered November 2, 2010; renewed.
 Reg. No. 5017562 for the mark WALTER GENUIN for
“Boots; Cardigans; Chemises; Coats; Gloves; Golf caps; Golf

15 “The WALTHER brand’s founder and namesake” was Carl Walther (1858-1915). Blalock
Decl., 34 TTABVUE 4.
16 Applicant’s First Notice of Reliance, 33 TTABVUE 9-102.
17 34 TTABVUE 11-58.
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pants, shirts and skirts; Golf shorts; Jackets; Jerseys;
Pullovers; Shirts; Shoes; Slippers; Sweaters; Trousers;
Vests; Wind shirts; Golf shirts; Golf shoes; Golf trousers;
Wind vests,” registered August 9, 2016.
 Reg. No. 5872119 for the mark LITTLE WALTER for
“Clothing, namely, t-shirts, shirts, blouses, sweaters, pants,
shorts, dresses, skirts, jackets, suits, coats, sleepwear,
loungewear, jogging suits, sweatshirts, hooded sweatshirts,
socks, underwear, boxer shorts, nightshirts, lingerie, athletic
pants and tops; headwear; footwear; clothing accessories,
namely, scarves, gloves, belts, wristbands as clothing, and
headbands,” registered October 1, 2019.
 Reg. No. 5680942 for the mark WALTER SKY for “Pants;
Shirts; Shorts; Sweatshirts; T-shirts; Vests; Clothing,
namely, base layers; Outer jackets; Sleeved or sleeveless
jackets,” registered February 19, 2019.
 Reg. No. 4445494 for the mark WALTER WRAITH for
“Clothing and accessories, namely, jeans, shirts, t-shirts,
sweaters, jackets, dress pants, pants, blouses, belts, scarves,
wrist bands, and gloves; Headwear, namely, hats, caps, and
toques; Casual and formal footwear, namely, boots, shoes,
and sandals,” registered December 10, 2013; partial Sections
8 and 15 combined declaration accepted and acknowledged.
 Reg. No. 2880786 for the mark WALTER HAGEN for
“Clothing, namely, shirts, sweaters, socks, belts, pants,
shorts, rain wear, and hats,” registered September 7, 2004;
renewed.
 Reg. No. 2971709 for the mark WALTER HAGEN for “men’s
golf apparel, namely, knit shirts, pants, rainwear, headwear,
socks, shoes,” registered July 19, 2005; renewed.
 Reg. No. 5910182 for the mark WALTER MORTON for
“Clothing, namely, pants, sport coats and suits,” registered
November 12, 2019.

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The following examples show use of these marks:
 WALTER, 34 TTABVUE 14:

 WALTER GENUIN, 34 TTABVUE 49-50.

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 LITTLE WALTER, 34 TTABVUE 45.

 WALTER SKY, 34 TTABVUE 25-26.

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 WALTER WRAITH, 34 TTABVUE 35, 37.

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 WALTER HAGEN, 34 TTABVUE 52.

 WALTER MORTON, 34 TTABVUE 56.

Opposition No. 91244468
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In addition, Applicant submitted webpages from the WALTER COLLECTION and
ED WALTERS websites, examples of which follow:
 WALTER COLLECTION, 34 TTABVUE 17.

 ED WALTERS, 34 TTABVUE 40.

We find that the third-party uses and registrations have only limited probative
value to show weakness of Opposer’s mark because the marks vary from each other
and from Opposer’s mark in significant ways. Most of the marks use WALTER as the
Opposition No. 91244468
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first name of a complete name, which together with the appended surname forms a
unique appellation that is unlikely to be confused with another name. Unlike, for
example, where a house mark is used in combination with another’s mark in such
fashion as to cause the consumer to mistakenly perceive that a new line extension
has been created or that the house mark is simply now being used with the previously
used product mark, here the combination of WALTER as a first name together with
unique and different surnames obviates the likelihood of confusion among the third-
party marks and as between each mark and Opposer’s mark.
We recognize that there is one identical mark, WALTER of Reg. No. 3870490, and
two unregistered marks, WALTER COLLECTION and ED WALTERS,18 all of which
are in use in commerce on apparel. However, this does not sufficiently lessen the
scope of protection to which Opposer’s mark is due, particularly since we have no
evidence of the scope of use of the marks or extent of their public exposure. Cf. In re
Mr. Recipe, 118 USPQ2d 1084, 1089 (TTAB 2016) (“[O]ne third-party registration has
little probative value, especially in the absence of evidence that the mark is in use on
a commercial scale or that the public has become familiar with it.”). In any event, as
previously noted, the ED WALTERS mark consists of a first and last name, which we
find distinguishable. As has often been said, we are not bound by the decisions of

18 We note that Applicant submitted a copy of the TSDR printout for Reg. No. 4733916 for
the mark EDWARD WALTERS for “Belts; Belts for clothing; Bottoms; Clothing, namely,
khakis; Combinations; Jackets; Jerseys; Leather belts; Short sets; Ties; Tops; Travel clothing
contained in a package comprising reversible jackets, pants, skirts, tops and a belt or scarf;
Wearable garments and clothing, namely, shirts; Wrist bands; Wristbands.” The registration
issued May 12, 2015. There is no evidence to support a finding that ED WALTERS and
EDWARD WALTERS are owned by the same entity, thus the registration is not listed above.
As for WALTER COLLECTION, there is no registration for this mark in the record.
Opposition No. 91244468
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examining attorneys in prior cases. The Board makes its own findings of fact, and
that duty may not be delegated by simply adopting without scrutiny the conclusions
reached by an examining attorney. In re Shinnecock Smoke Shop, 571 F.3d 1171, 91
USPQ2d 1218, 1221 (Fed. Cir. 2009) (“each application must be considered on its own
merits”); In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir.
2001) (“the PTO’s allowance of such prior registrations does not bind the Board”).
Finally, we are not persuaded by Applicant’s arguments that Opposer’s “knowing
acquiescence” to the one third-party WALTER registration and Opposer’s so-called
“half-hearted approach to enforcing its claim of rights” against the others is any
evidence in favor of a finding of no likelihood of confusion. Applicant’s Brief, 41
TTABVUE 40. Opposer’s state of mind is irrelevant to our determination on
likelihood of confusion, and to the extent Applicant contends that Opposer by its
actions has abandoned its mark for failure to police third-party users, the contention
constitutes a collateral attack upon Opposer’s registration and as such cannot be
considered in the absence of a counterclaim to cancel the registration. 37 C.F.R.
§ 2.106(b)(2)(ii).
We find Applicant’s mark is similar to the registered mark WALTER
in appearance, sound, connotation and commercial impression.
F. Actual confusion
Applicant has used its WALTHER Banner logo for clothing since at least as early
as 1994. Blalock Decl., 32 TTABVUE 8-9 and Exhibits 11 through 21, 32 TTABVUE
108-163 (pages from WALTHER brand U.S. catalogs from 1994 to 2020). Opposer’s
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registration for WALTER has a constructive first use date based on its filing of
December 3, 2004. Opposer admitted that its WALTER mark has coexisted in Class
25 since September 1, 2004, with third-party marks that contain the term
“WALTER.” Request for admissions No. 17, 35 TTABVUE 38.
Applicant argues that despite over 16 years of concurrent use of the parties’
marks, the “absence of marketplace confusion … is powerful evidence that Applicant’s
WALTHER Banner Logo is not likely to cause confusion with Opposer’s mark or
business.” 41 TTABVUE 38. Opposer concurs; it is “unaware of any instances of
actual confusion between Applicant’s goods and Opposer or the designer, Walter
Baker.” 35 TTABVUE 55 and 72.
“A showing of actual confusion would of course be highly probative, if not
conclusive, of a high likelihood of confusion. The opposite is not necessarily true,
however. The lack of evidence of actual confusion carries little weight.” Gen. Mills,
Inc. v. Fage Dairy Processing Indus. S.A., 100 USPQ2d 1584, 1603-1604 (TTAB 2011).
The lack of evidence of actual confusion occurring over a significant period takes on
greater weight if it can be shown that there have been meaningful opportunities for
such confusion to occur. Based on this record, there appear to have been only limited
opportunities for confusion to occur, inasmuch as Applicant sells its goods exclusively
through licensed distributors and on its website only. Blalock Decl., 32 TTABVUE 11
(“We make WALTHER brand clothing available to consumers through only two
distribution channels – specifically, Walther Arm’s website (https://shop.walther
arms.com/) and authorized retailers of WALTHER firearms.”).
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Accordingly, this factor is neutral.
IV. Conclusion
We have carefully considered all of the evidence and arguments of record.
Opposer’s mark WALTER is similar in appearance, pronunciation, connotation and
overall commercial impression to Applicant’s mark . Applicant’s and
Opposer’s clothing is legally identical in part and otherwise closely related. The
overlap in the trade channels and classes of consumers also favor a finding of
likelihood of confusion, while actual confusion is a neutral factor. We thus find that
Opposer has established by a preponderance of the evidence that confusion is likely
under Section 2(d) of the Trademark Act.
Decision: The opposition under Section 2(d) of the Trademark Act is sustained.