Wicked Fashions, Inc.

Trademark Trial and Appeal Board

Aug 12, 2005

No. 78145261 (T.T.A.B. Aug. 12, 2005)

Hearing: Mailed:
June 29, 2005 August 12, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Wicked Fashions, Inc.
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Serial No. 78145261
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John T. Johnson of Fish & Richardson P.C. for Wicked
Fashions, Inc.

Rudy R. Singleton, Trademark Examining Attorney, Law Office
102 (Thomas V. Shaw, Managing Attorney).
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Before Hohein, Rogers and Zervas, Administrative Trademark
Judges.

Opinion by Zervas, Administrative Trademark Judge:

Wicked Fashions, Inc. has filed, on July 18, 2002, an
application to register on the Principal Register the mark
LOT29 (in standard character form) for “wearing apparel,
namely, jeans, trousers, shorts, coats, jackets, vests,
shirts, and footwear” in International Class 25. The
application is based on a bona fide intent to use the mark
in commerce under Trademark Act Section 1(b), 15 U.S.C.
§1051(b).
THIS DISPOSITION
IS NOT CITABLE AS
PRECEDENT OF THE
TTAB
Ser No. 78145261
2
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the
ground that applicant's mark, when used in connection with
its goods, so resembles the previously registered mark
LOT 53 (in standard character form) for “clothing, namely
men’s, women’s, and children’s pants, slacks, trousers,
jeans, shorts, overalls, shirts, t-shirts, blouses, vests,
skirts, jackets, coats, sport coats, sweaters, sweatshirts,
sweatpants, hats, ties, belts, socks and shoes” in
International Class 25 as to be likely to cause confusion,
or to cause mistake or to deceive.1
Applicant has appealed the final refusal. Both
applicant and the examining attorney have filed briefs. An
oral hearing was held on June 29, 2005.2
Our determination of the examining attorney's refusal
to register the mark under Section 2(d) of the Trademark
Act 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. See In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also, In
re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d

1 Registration No. 2443476, issued April 10, 2001.
2 Examining Attorney Rudy Singleton argued on behalf of the
Office in the oral hearing.
Ser No. 78145261
3
1201 (Fed. Cir. 2003). In any likelihood of confusion
analysis, 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 (CCPA 1976). See
also, In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531 (Fed. Cir. 1997).
We first turn to the similarity or dissimilarity of
registrant's and applicant's goods, the relevant trade
channels and the purchasers of such goods.
The goods are identical in part, with jeans, trousers,
shorts, coats, jackets, vests, and shirts being in both
identifications of goods. In addition, applicant’s
“footwear” encompasses registrant’s “shoes.” As to the
other goods, applicant's and registrant's items of clothing
are closely related. Indeed, applicant, at p. 7 of its
appeal brief, has acknowledged, “[t]here is no doubt that
all of WFI’s [i.e., applicant’s] goods are covered by the
Registration.” Thus, the second du Pont factor weighs in
favor of a finding of likelihood of confusion.
With respect to the trade channels and the purchasers
of the respective goods, we presume in the absence of any
restrictions in the identifications of goods in the
application and registration that applicant's and
Ser No. 78145261
4
registrant's goods are marketed in the same, overlapping
trade channels to the same classes of purchasers. See In
re Elbaum, 211 USPQ 639 (TTAB 1981). Thus, the third and
fourth du Pont factors weigh in favor of a finding of
likelihood of confusion.
We next consider the similarities and dissimilarities
of the marks, mindful that in cases such as this one, where
the marks would appear on identical or related goods, the
degree of similarity necessary to support a conclusion of
likely confusion declines. See Century 21 Real Estate
Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d
1698 (Fed. Cir. 1992). Specifically, we must determine
whether applicant's mark LOT29, and registrant's mark LOT
53, are similar or dissimilar when compared in their
entireties in terms of appearance, sound, connotation and
commercial impression. We do not consider whether the
marks can be distinguished when subjected to a side-by-side
comparison, but rather whether the marks are sufficiently
similar that confusion as to the source of the goods
offered under the respective marks is likely to result.
The focus is on the recollection of the average purchaser,
who normally retains a general rather than a specific
impression of trademarks. See Sealed Air Corp. v. Scott
Paper Co., 190 USPQ 106 (TTAB 1975).
Ser No. 78145261
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In terms of appearance, we find that applicant's and
registrant's respective marks are similar. Both marks
begin with the letters “L,” “O” and “T” (in the same
sequence and without spaces between each letter), followed
by a two-digit numeral. “53” and “29” of course are
different numbers, and registrant's mark has a space
between LOT and the numeral while applicant's mark does
not. On balance, however, we find that the points of
similarity between the marks outweigh the points of
dissimilarity, and that when the marks are compared in
their entireties, they are more similar than dissimilar.
In terms of sound, we find that the marks are similar.
Both marks begin with the word “lot,” a one-syllable word,
and have a total of four syllables. The numerical portions
of the marks both have three syllables. No words or
symbols separate LOT and the numerals, thus there are no
other sounds in either mark between the word LOT and the
numerals.
Applicant contends that some may view LOT29 as an
alphanumeric string and that it could be spoken as “EL-OH-
TEE TWENTY NINE.” While there is no "correct"
pronunciation of a trademark because it is impossible to
predict how the public will pronounce a mark, see In re
Great Lakes Canning, Inc., 227 USPQ 483 (TTAB 1985), it is
Ser No. 78145261
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likely that very few purchasers would pronounce the mark as
suggested by applicant. “Lot” is an English language word.
When a series of letters spells out an English word,
consumers will likely read the word, rather than sound out
each letter in the word, even if the letters are followed
by a numeral. Applicant, neither in its briefs nor during
the oral hearing, has presented a convincing argument to
the contrary.
In terms of connotation, we find that the marks have
highly similar connotations. One of the definitions of
“lot” in The American Heritage Dictionary of the English
Language (2003), of which we take judicial notice, is
“miscellaneous articles sold as one unit.” See 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) (the Board may take judicial
notice of dictionary definitions).3 Both marks convey to

3 Applicant, with its appeal brief, filed an affidavit by Anthony
L. Fletcher, who identifies, inter alia, definitions of “lot”
taken from three dictionaries. Mr. Fletcher also offers in his
affidavit his own views of use of the term “lot” in the English
language. The examining attorney has objected to Mr. Fletcher’s
affidavit because it was filed late in the prosecution of this
case. We sustain the examining attorney’s objection to the
untimely submission of this evidence and we have not given any
consideration to this evidence. See Trademark Rule 2.142(d); and
TBMP § 1207.03 (2d ed. rev. 2004) and cases cited therein. Even
if this evidence were considered, however, it would not compel a
different result herein.

Ser No. 78145261
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consumers that the goods belong to or come from a numbered
“lot.” In the case of applicant's goods, its mark conveys
to consumers that the goods belong to a “lot” numbered 29,
or, to use applicant's wording, “batch number 29.” In the
case of the registrant's goods, its mark conveys to
consumers that its goods belong to a “lot” numbered 53, or,
“batch number 53.”
In view of the similarities of the marks noted above,
we find that when considered in their entireties, the marks
are similar in overall commercial impression. The first du
Pont factor is hence resolved in favor of a finding of
likelihood of confusion.
Applicant argues in its brief that LOT “is suggestive
of clothing itself - it implies that both LOT29 and LOT 53
clothes all derive from batches separately produced” and
hence “is significantly less distinctive and weaker and
therefore entitled to a significantly narrower scope of
protection than if it were arbitrary.” (Emphasis in the
original.) Applicant also maintains that LOT is not the
dominant portion of either mark, but rather that the
numerical portions of the two marks are the dominant
portions of the two marks, and that there would be “no
problem distinguishing the two.” We are not persuaded that
the ultimate consumer would ascribe any particular
Ser No. 78145261
8
significance to “lot,” or even the mark taken as a whole.
To the ultimate consumer, which would include any member of
the general public, because there is no restriction as to
classes of consumers in applicant's and registrant's
identifications of goods, whether a clothing product is
part of Lot 29, Lot 53 or any other clothing lot would
likely be of no consequence. Further, it has frequently
been stated that the first part of a mark is more likely to
be impressed upon the mind of a purchaser and remembered.
Presto Products v. Nice-Pak Products, 9 USPQ2d 1825 (TTAB
1988). Consequently, we do not agree that the numerical
portions of the marks are the dominant portions of the
marks.
On the basis of our findings discussed above, we
conclude that confusion with registrant's mark is likely to
occur if applicant's LOT29 mark were to be used on or in
connection with the goods identified in applicant's
application. We have considered all of applicant’s
arguments to the contrary (including arguments not
specifically addressed in this opinion) but are not
persuaded by them.
Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed.