U.S. Olympic Committeev.Lifetime Products, Inc.

Trademark Trial and Appeal Board

Jun 2, 1998

OPP (T.T.A.B. Jun. 2, 1998)

Skoro Opposition Nos. 97,223
97,274
THIS DISPOSITION IS
NOT CITABLE AS PRECEDENT
OF THE TTAB 6/2/98
United States Olympic
Committee
v.
Lifetime Products, Inc.
Opposition Nos. 96,029
96,808
97,273
97,542
USA Basketball and
NBA Properties, Inc.
v.
Lifetime Products, Inc.1
Before Sams, Cissel and Seeherman, Administrative Trademark
Judges.
Four applications have been filed by Lifetime Products,
Inc. for the mark TEAM USA and design, as shown below, for
various basketball-related products2 in classes 28 and 25.

1 The parties are requested to put all proceeding numbers in
the caption of all papers filed with the Board.
2 The specific items identified in the applications are
“portable basketball standards, backboards and goals”, Serial No.
74/483,534, filed January 26, 1994; “basketballs”, Serial No.
UNITED STATES DEPARTMENT OF COMMERCE
Patent and Trademark Office
Trademark Trial and Appeal Board
2900 Crystal Drive
Arlington, Virginia 22202-3513
Opposition Nos. 97,223; 97,274 & 96,029; 96,808; 97,273; 97,542
2
The applications have been opposed by the United States
Olympic Committee,3 claiming priority of use of TEAM USA for
promoting Olympic Games and in connection with various
goods, and also in connection with various services.
Opposer alleges that applicant’s use of TEAM USA and design
in connection with the identified goods is likely to cause
confusion, mistake, or to deceive and falsely suggests a
connection with opposer. Applicant denied all the salient
allegations.
This case now comes up on opposer’s motion for summary
judgment, filed August 30, 1996. As grounds for the motion,
opposer states that it has been using TEAM USA on T-shirts
through its licensee, J.C. Penney, since 1991; that it has
been using TEAM USA in connection with sports teams,
including basketball, through its member organization, USA
Basketball, since May, 1993; and that the press has been

74/438,258, filed September 21, 1993; “clothing, namely, t-shirts
and athletic shorts”, Serial No. 74/438,259, filed September 21,
1993; and “basketball backboards”, Serial no. 74/424,228, filed
August 13, 1993. All allege a bona fide intention to use the
mark in commerce
3 USA Basketball and NBA Properties, Inc., initially filed
oppositions to the involved applications, but have since assigned
their rights in the mark to the United States Olympic Committee,
resulting in the consolidation of these proceedings.
Opposition Nos. 97,223; 97,274 & 96,029; 96,808; 97,273; 97,542
3
reflecting the public’s association of TEAM USA with the
Olympics, and hence opposer, since 1987. In addition to
asserting its priority, opposer contends that there is a
likelihood of confusion between the marks in that the marks
themselves are virtually identical; that the goods of
applicant are closely related to the goods and services of
opposer, having the same customers and the same channels of
trade; and that, given the fame of opposer’s marks, the
public is given the mistaken impression that applicant’s
goods are endorsed by opposer.4
Applicant responds, contending that opposer has not
provided a copy of any license agreement with J.C. Penney,
or any other evidence that J.C. Penney was licensed to use
TEAM USA, and therefore J.C. Penney’s use of the mark does
not inure to opposer; that J.C. Penney’s use on t-shirts is
ornamentation and not trademark use; that the evidence of
use by USA Basketball is a press release and does not
demonstrate trademark or service mark use; and opposer’s
claimed analogous use by the press shows an inconsistency.
Thus, according to applicant, opposer has failed to
establish priority. As to likelihood of confusion,
applicant contends that there is no evidence of use on any

4 Opposer further indicates that it has filed two applications
for registration of the mark TEAM USA, Serial nos. 74/552,713 and
74/552,714, on May 10, 1994. These filings are not before the
Board in this proceeding.
Opposition Nos. 97,223; 97,274 & 96,029; 96,808; 97,273; 97,542
4
goods by opposer; that the marks are not similar given
applicant’s disclaimer of USA and the inclusion of
applicant’s design element; that opposer has not established
the fame of its mark; that opposer’s mark is weak; and that
consumers are careful in their purchase of basketball
equipment.
The burden is on the party moving for summary judgment
to demonstrate the absence of any genuine issue of material
fact, and that it is entitled to summary judgment as a
matter of law. Fed. R. Civ. P. 56(c). See also, Celotex
Corp. v. Catrett, 477 U.S. 317 (1986). The evidence of
record and any inferences which may be drawn from the
underlying undisputed facts must be viewed in the light most
favorable to the non-moving party. See, Olde Tyme Foods
Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542 (Fed.
Cir. 1992). In considering the propriety of summary
judgment, the Board may not resolve issues of material fact
against the non-moving party; it may only ascertain whether
such issues are present. See, Opryland USA, Inc. v. Great
American Music Show, Inc., 970 F.2d 847, 23 USPQ2d 1471
(Fed. Cir. 1993); and Lloyd’s Food Products Inc. v. Eli’s
Inc., 987 F.2d 766, 25 USPQ2d 2027 (Fed. Cir. 1993).
In certain cases, however, even though disputes remain
with respect to certain material facts, summary judgment may
be granted, so long as all factual disputes are resolved in
Opposition Nos. 97,223; 97,274 & 96,029; 96,808; 97,273; 97,542
5
favor of the non-moving party and inferences drawn from the
undisputed facts are viewed in the light most favorable to
the non-moving party. See, Larry Harmon Pictures Corp. v.
The William’s Restaurant Corp., 929 F.2d 662, 18 USPQ2d
1292, 1293 (Fed. Cir. 1991); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) (“The evidence of the non-
movant is to be believed, and all justifiable inferences are
to be drawn in his favor”); and Bishop v. Wood, 426 U.S.
341, n.11 (1976) (“In granting summary judgment for
respondents, the District Court was required to resolve all
genuine disputes as to material facts in favor of
petitioner.”).
In this case, opposer has provided an affidavit from
Kim Raymer, the Vice President of Spelcor, the supplier of
screenprinted clothing to J.C. Penney, who documents working
with J.C. Penney in the creation of clothing designs
incorporating the mark TEAM USA, having them approved by
opposer, and offering them for sale in or about October
1991. Opposer has also provided an affidavit from Craig
Miller, the Assistant Executive Director - Public Relations
for USA Basketball, who documents that USA Basketball is a
member of the United States Olympic Committee and the
National Governing Body in the United States for basketball;
that USA Basketball has been using the mark TEAM USA to
promote the sport of basketball and the activities of USA
Opposition Nos. 97,223; 97,274 & 96,029; 96,808; 97,273; 97,542
6
Basketball since May 5, 1993; and that USA Basketball
assigned all right, title and interest in the trademark TEAM
USA to opposer effective January 1, 1996. Finally, opposer
has provided print outs from the Westlaw® database of news
articles,5 dating back to 1988, demonstrating the use by the
press of TEAM USA in connection with the Olympics and
basketball.
In an effort to demonstrate the presence of a genuine
issue of material fact, applicant has submitted the
affidavit of Craig J. Madson,6 trademark counsel for
applicant, who argues the failure of opposer’s evidence and
submits three articles retrieved from an electronic
database, as well as examples of applicant’s actual use of
its mark in 1996.

5 Applicant contends that opposer has been selective in its
submission of articles which support its position, that there may
be articles which refer to TEAM USA in a different context, but
that such articles are uniquely within the possession and control
of opposer. The electronic databases which can be used to
retrieve articles published in the media of general circulation
are equally available to both parties. See 37 C.F.R. ' 2.122(e).
Applicant should have submitted those articles which it contends
contradict opposer’s position. We note that applicant has
submitted three recent articles from an unidentified database;
this demonstrates the availability of the information.
6 Opposer has moved to strike this affidavit, contending that
it is not based on Mr. Madson’s personal knowledge, does not
contain statements of fact which are admissible in evidence, in
that they are based on ‘information and belief’, and constitutes
factual testimony by Mr. Madson on behalf of his client. In that
Mr. Madson’s affidavit is the full extent of the support for
applicant’s opposition to the motion for summary judgment, and it
is necessary that we view facts in a light most favorable to
applicant, opposer’s motion to strike is denied.
Opposition Nos. 97,223; 97,274 & 96,029; 96,808; 97,273; 97,542
7
Opposer has filed a reply brief.7
We find, from the evidence submitted by the parties,
that there exists no genuine issue of fact that opposer
authorized the design and sale of t-shirts and other
articles of clothing bearing TEAM USA in 1991, through one
of its licensees, J.C. Penney,;8 that one of opposer’s
member organizations, USA Basketball, has used TEAM USA in
connection with a basketball team composed of top college
players in international competitions since May, 1993, prior
to applicant’s filing date;9 and that there is a strong
connection made by the American public between the term TEAM
USA and the Olympics and international sporting
competitions, as reflected in the press.10 Opposer has also
provided documents establishing the use of TEAM USA as a

7 Because opposer’s motion for leave to file a reply brief in
support of its motion for summary judgment is, in our opinion,
well taken, the motion is granted, and opposer’s reply brief and
supporting materials have been considered in our determination of
this case.
8 This is supported by the affidavit of Kim Raymer with
supporting documentation.
9 This is supported by the affidavit of Craig Miller with
supporting documentation. Applicant has not challenged the
relationship between opposer and USA Basketball, or any of
opposer’s member organizations.
10 This is supported by some 91 articles retrieved from the
Westlaw® database drawn from national and local newspapers
throughout the United States prior to applicant’s constructive
use date.
Opposition Nos. 97,223; 97,274 & 96,029; 96,808; 97,273; 97,542
8
mark on clothing and in connection with promoting amateur
sports, prior to 1993.11
Conversely, applicant has offered no contradictory
evidence on summary judgment as to priority of use.12
Applicant has established that applicant actually used its
mark on basketball backboards in 1996; and that it has a
constructive use date of August 13, 1993 based on the filing
date of the opposed application.
In that opposer has established use of the mark on
dates which precede applicant’s constructive use date, we
find that there is no genuine issue of material fact as to
priority of use of the mark TEAM USA by opposer.
We turn next to the issue of likelihood of confusion.
Having carefully considered the materials and arguments
submitted by the parties in connection with the issue of a

11 These are documents opposer produced in response to
applicant’s 56(f) discovery: a photograph of T-shirts bearing
the mark on the 1992 J.C. Penney catalog (OPP00030, OPP00255-
257); a brochure on Olympic baseball using the mark as a service
mark (OPP00036); use of the mark on amateur bowling paraphernalia
contained in a 1993 catalog (OPP00247-254); use of the mark on
Sara Lee Knit/Hanes licensed products accompanied by a July 1,
1993 sales invoice (OPP00277-78, OPP00283-284); and a 1993
advertisement by CBS identifying TEAM USA as a trademark of the
USOC.
12 Applicant argues that opposer has not established that the
use of TEAM USA by J.C. Penney and USA Basketball inures to
opposer, because opposer has not produced its license agreements.
However, in applicant’s request for 56(f) discovery, applicant
asked for documents describing opposer’s control over its marks
and opposer stated it would produce the license agreements
subject to an appropriate protective order. Applicant cannot now
be heard to complain and draw inferences from the absence of
evidence it has not availed itself of.
Opposition Nos. 97,223; 97,274 & 96,029; 96,808; 97,273; 97,542
9
likelihood of confusion, we find that the marks are
virtually identical: TEAM USA and TEAM USA and design.
Applicant argues that its design is dominant because “USA”
has been disclaimed, and it is dissimilar to the design
features used by opposer. We do not agree. Any design
element of opposer’s mark is not before the Board.
Applicant’s design element consists of a stylized typeface
and a star, which are insufficient to distinguish the two
marks, while the literal portion of applicant’s mark is
identical to opposer’s mark: TEAM USA. If a mark comprises
both words and a design, greater weight is often given to
the words, which are what purchasers use in requesting the
goods. In re Appetito Provisions Co. Inc., 3 USPQ2d 1553,
1554 (TTAB 1987). It is just as likely that purchasers will
see the design element as a variant of opposer’s word mark.
Further, there is no genuine issue of material fact
that the parties’ respective goods are related. Applicant
describes some of its goods as t-shirts and athletic shorts
and opposer, through its licensees, uses its mark on
clothing, thus establishing use of the parties’ marks on the
same goods. Further, it is established that opposer uses
its mark to organize and promote sports teams, including
basketball. Opposer has licensees which produce numerous
officially licensed products, including mini and regulation
basketballs (Ace Novelty) and sports bags (Innovo Group),
Opposition Nos. 97,223; 97,274 & 96,029; 96,808; 97,273; 97,542
10
and these items appear in advertisements of opposer’s
officially licensed goods (OPP00295). Applicant’s goods are
identified as basketballs, portable basketball standards,
backboards and goals. Thus, opposer has established that the
parties’ goods are related.
As to the channels of trade, applicant contends that a
significant difference lies in the fact that applicant’s
goods are being sold in sporting goods stores and large
retail chains, and that opposer has not established any
channels of trade of its own. However, applicant’s goods,
as identified in its applications, are not limited to
specific channels of trade and must therefore be deemed to
be sold in all channels appropriate for such goods.
Therefore, applicant’s t-shirts must be considered to be
sold in the same channels of trade as opposer’s t-shirts.
Moreover, opposer has established that its licensed t-shirts
have been sold in at least one large retail chain.
Considering the substantial similarities between the
marks, we find that, when used on the identified goods and
services, confusion is likely to result.
Therefore, because the Board finds that there is no
genuine issue of material fact on the issues of priority and
likelihood of confusion, and that opposer is entitled to
judgment as a matter of law, opposer’s motion for summary
judgment is granted. Judgment is hereby entered against
Opposition Nos. 97,223; 97,274 & 96,029; 96,808; 97,273; 97,542
11
applicant, the opposition is sustained and registration to
applicant is refused.
J. D. Sams
R. F. Cissel
E. J. Seeherman
Administrative Trademark
Judges, Trademark Trial
and Appeal Board