Angelo Ghailian

Trademark Trial and Appeal Board

May 18, 2010

No. 78654584 (T.T.A.B. May. 18, 2010)

Mailed:
May 18, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Angelo Ghailian
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Serial No. 78654584
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Benjamin Aydindzhyan of Ourfalian & Ourfalian for Angelo
Ghailian

Rebecca L. Gilbert, Trademark Examining Attorney, Law
Office 103 (Michael Hamilton, Managing Attorney).
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Before Seeherman, Holtzman and Zervas, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Angelo Ghailian, an individual, has appealed from the
trademark examining attorney’s final refusal to register
ASTROLOGIE, in standard character format, as a trademark
for goods identified, as amended, as “apparel, namely,
pants, shirts, and jackets.”1 Registration has been refused

1 Application Serial No. 78654584, filed June 20, 2005, claiming
first use as of October 1, 1998 and first use in commerce as of
December 1, 1998. The application as originally filed claimed
two bases for the application: use and intent-to-use, with a
date of first use at least as early as October 15, 2003 and use
in commerce at least as early as December 1, 2003. Upon the
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 78654584
2
pursuant to Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), on the ground that applicant’s mark so resembles
the mark BABY ASTROLOGY, registered in standard character
format with BABY disclaimed, for “clothing, namely, infant
wear, cloth bibs,”2 that, when used with applicant’s
identified goods, it is likely to cause confusion or
mistake or to deceive.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of 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). See also, In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.
Cir. 2003). The examining attorney asserts that the
relevant du Pont factors in this case are the similarity of
the marks, similarity of the goods, and trade channels,
while applicant asserts that the relevant factors are the
similarity of the marks and goods, and the extent of
potential confusion. Accordingly, we will focus our
discussion on these factors.

examining attorney’s requiring applicant to either indicate a
single basis or identify which basis pertained to which goods,
applicant amended his application to base it solely on Section
1(a) of the Trademark Act (use in commerce), claiming the 1998
use dates.
2 Registration No. 3140164, issued September 5, 2006.
Ser No. 78654584
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With respect to the goods, applicant’s goods are
identified as pants, shirts and jackets, and the
registrant’s goods are infant wear and cloth bibs. The
examining attorney has pointed out that, as identified,
applicant’s goods are deemed to include pants, shirts and
jackets for infants and, thus, are in part legally
identical to the registrant’s infant wear. Applicant has
argued that his goods do not encompass those identified in
the cited registration, relying on his website which states
that applicant’s product capabilities are confined “to the
apparel categories of: mens, boys, womens, and juniors.
Nowhere in the website is there a mention of a capability
to produce infant wear or clothing or cloth bibs.” Brief,
p. 9. The problem with this argument, however, is that
likelihood of confusion must be determined based on an
analysis of the mark as applied to the goods or services
recited in an applicant's application vis-a-vis the goods
or services recited in a registration, rather than what the
evidence shows the goods or services to be. In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed.
Cir. 1997). Thus, we must deem applicant’s identified
“pants, shirts and jackets” to include pants, shirts and
jackets for infants, and therefore they are legally
identical to the infant wear identified in the cited
Ser No. 78654584
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registration. As such, the goods must also be deemed to
travel in the same channels of trade.
Moreover, even if we accepted applicant’s position
that his goods do not include apparel for infants, we would
find the goods to be closely related. It is well-
established that it is not necessary that the goods or
services of an applicant and the registrant be similar or
competitive, or even that they move in the same channels of
trade, to support a holding of likelihood of confusion. It
is sufficient that the respective goods or services are
such that they would or could be encountered by the same
persons under circumstances that could, because of the
similarity of the marks, give rise to the mistaken belief
that they originate from the same producer. See In re
International Telephone & Telegraph Corp., 197 USPQ 910,
911 (TTAB 1978).
Here, the examining attorney has shown that companies
sell clothing for both infants or toddlers and for adults
under the same marks and in the same channels of trade.
For example, the website for HANNA ANDERSSON,
www.hannaandersson.com, lists as categories “baby,” girls,”
“boys” and “women,” and features a photograph of a woman
and child wearing similar dresses. The website for GAP,
www.gap.com, lists as categories “Women,” “Men,” “GapKids”
Ser No. 78654584
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and “babyGap”; in addition, the examining attorney has
submitted registrations owned by a single entity for GAP
and BABY GAP, both for items of clothing. The TrendyChic
website, www.trendychic.com, lists as categories, inter
alia, “baby clothing,” “girl clothing” and “women
clothing,” and states that the collections it sells include
the PETIT BATEAU line of clothing for baby, and PETIT
BATEAU Tee Shirts for women, while the NEIMAN MARCUS
website, www.neimanmarcus.com, features JUICY COUTURE BABY
bodysuits and bibs, JUICY track suits, tanks, t-shirts and
bodysuits for babies, and JUICY COUTURE women’s tops,
jackets, pants and skirts. In addition, applicant’s own
materials show that his apparel is not limited to adults,
but is also made for boys and juniors. All of this
evidence shows that apparel manufacturers can and do sell
clothing for a variety of ages and sizes, including for
adults and babies, and that they do so under the same mark
or a variation of the “adult” mark that indicates that the
clothing is for children, e.g., “babyGap,” JUICY COUTURE
BABY. It also shows that apparel for adults and children
are sold in the same channels of trade.
Accordingly, we find that applicant’s and the
registrant’s goods, as identified, are in part legally
identical and in part closely related, and that the du Pont
Ser No. 78654584
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factors of the similarity of the goods and the channels of
trade favor a finding of likelihood of confusion.
We next consider the factor of the similarity of the
marks, keeping in mind that when marks would appear on
virtually identical goods or services, as they do here, the
degree of similarity necessary to support a conclusion of
likely confusion declines. Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700
(Fed. Cir. 1992). Applicant’s mark is ASTROLOGIE; the
cited mark is BABY ASTROLOGY. It is a well-established
principle that, in articulating reasons for reaching a
conclusion on the issue of likelihood of confusion, there
is nothing improper in stating that, for rational reasons,
more or less weight has been given to a particular feature
of a mark, provided the ultimate conclusion rests on a
consideration of the marks in their entireties. In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985). In this case, we give the word BABY in the
registrant’s mark little weight. BABY, which has been
disclaimed, describes the registrant’s clothes--infant wear
and bibs. It is the word ASTROLOGY that consumers will
look to as indicating the source of these baby clothes.
Applicant does not dispute this, acknowledging that
Ser No. 78654584
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ASTROLOGY is the dominant feature of the mark. Brief,
p. 10.
Applicant’s mark, ASTROLOGIE, would be pronounced
identically to the word ASTROLOGY in the registrant’s mark.
Applicant acknowledges that “the Applicant’s mark and the
registered mark are phonetically similar when pronounced
despite the spelling difference.” Brief, p. 5. We also
consider the marks to be very similar in appearance. The
minor difference in spelling, with applicant’s mark using
an “IE” in place of the “Y” in the normal spelling of this
word, is not likely to be remembered by consumers.
Although applicant has discussed how the marks look “when
compared side by side,” brief, p. 6, under actual marketing
conditions consumers do not necessarily have the luxury of
making side-by-side comparisons between marks, and must
rely upon their imperfect recollections. Dassler KG v.
Roller Derby Skate Corporation, 206 USPQ 255 (TTAB 1980).
Applicant has also discussed the differences in appearance
of the marks as they appear on applicant’s specimen and the
specimen for a bib found in the cited registration file.
However, because the cited mark is registered in a standard
character format, and applicant also seeks to register his
mark in this format, any specific differences in the way in
which the marks are currently being depicted cannot serve
Ser No. 78654584
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to distinguish them. The protection to which the cited
registration is entitled is not limited to a particular
typestyle, nor would applicant be so restricted if he were
to obtain a registration. Thus, both applicant and the
registrant could change the manner in which they currently
depict their marks. As for other wording and designs on
the packaging for the registrant’s bib, they are not part
of the registrant’s mark, and we must determine the issue
of likelihood of confusion based on the registered mark and
the mark shown in the drawing of applicant’s application.
Because applicant’s mark would readily be perceived as
the equivalent of the word ASTROLOGY, the marks have the
same connotation, with the word BABY in the cited mark
merely indicating that the goods are for babies. Again,
this additional word does not serve to distinguish the
marks; consumers are likely to view BABY ASTROLOGY and
ASTROLOGIE as indicating different lines of apparel
emanating from the same source, with the BABY ASTROLOGY
line specifically for baby clothing.
Applicant has cited In re British Bulldog, Ltd., 224
USPQ 854 (TTAB 1984), as a case in which the Board found no
likelihood of confusion when identical marks were used for
different items of clothing. However, in that case, the
marks had different connotations because of the goods with
Ser No. 78654584
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which they were used. (“‘PLAYERS’ for shoes implies a fit,
style, color, and durability adapted to outdoor activities.
‘PLAYERS’ for men's underwear implies something else,
primarily indoors in nature.” Id. at 856.) See also In re
Sears, Roebuck and Co., 2 USPQ2d 1312 (TTAB 1987) (CROSS-
OVER for brassieres suggests their construction, while
CROSSOVER for ladies’ sportswear is either arbitrary or
suggests sportswear which “crosses over” the line between
informal and more formal wear or the line between two
seasons).
In the present case, though, the word ASTROLOGIE in
applicant’s mark has the same meaning as the word ASTROLOGY
in the cited mark. Moreover, in the above-cited cases the
marks were found to have a different connotation because of
the differences in the applicant’s and the registrant’s
goods. Here, as we have already discussed, applicant’s
goods and the registrant’s goods are in part legally
identical.
Accordingly, we find that the marks are very similar
in appearance, pronunciation, connotation and commercial
impression, and that this du Pont factor favors a finding
of likelihood of confusion.
Applicant’s arguments with respect to whether
potential confusion is de minimis largely repeat his
Ser No. 78654584
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arguments regarding the similarities of the marks and the
goods, and we will not repeat them. In our view, because
these are frequently purchased consumer products bought by
the public at large, the number of people who may be
confused is substantial, and therefore the potential for
confusion is not de minimis. Further, these items of
apparel, because of their very nature, may be sold at
relatively low price points, and therefore they may be
purchased on impulse or without care by ordinary
purchasers. The du Pont factor of the conditions of
purchase also favors a finding of likelihood of confusion.
No evidence or argument has been submitted regarding
the remaining du Pont factors, and we therefore treat them
as neutral, although we note that there is no evidence of
third-party use or any evidence to show that the registered
mark is not a strong mark.
For the reasons discussed above, we find that
applicant’s mark ASTROLOGIE for “apparel, namely, pants,
shirts, and jackets” is likely to cause confusion with the
registered mark BABY ASTROLOGY for “clothing, namely,
infant wear, cloth bibs.”
Decision: The refusal of registration is affirmed.