Anthony L&S, LLC

Trademark Trial and Appeal Board

Mar 23, 2012

No. 77967215 (T.T.A.B. Mar. 23, 2012)

Mailed:
March 23, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Anthony L&S, LLC.
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Serial No. 77967215
_______

William H. Cox of Gordon Herlands Randolph & Cox, for Anthony
L&S, LLC.

Mark Shiner, Trademark Examining Attorney, Law Office 102 (Karen
M. Strzyz, Managing Attorney).
_______

Before Kuhlke, Bergsman, and Ritchie, Administrative Trademark
Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Anthony L&S, LLC (“applicant”) filed an application to
register the mark BFFL!, BEST FRIENDS FOR LIFE! and design, as
shown below, for goods identified as “footwear, shirts, pants,
jackets, and headwear,” in International Class 25:1

1 Serial No. 77967215, file March 24, 2010, pursuant to Section 1(b) of
the Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to
use the mark in commerce.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77967215
2

The Trademark Examining Attorney refused registration of
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d), on the ground that applicant’s mark so
resembles the registered mark BFFLZ,2 in standard character form,
for “footwear,” in International Class 25, that when used on or
in connection with applicant’s identified goods, it is likely to
cause confusion or mistake or to deceive.
Upon final refusal of registration, applicant filed a
timely appeal. Both applicant and the examining attorney filed
briefs, and applicant filed a reply brief. For the reasons
discussed herein, the Board affirms the refusal to register.
We base our determination under Section 2(d) on an analysis
of all of the probative evidence of record bearing on a

2 Registration No. 3743191, issued January 26, 2010.
Serial No. 77967215
3
likelihood of confusion. In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); see also, In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities between
the marks and the similarities between the goods or services.
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”).
The Goods and Channels of Trade

The application identifies solely “footwear,” which is also
included in the cited registration. The examining attorney has
also submitted numerous third-party registrations that include
both “footwear,” as identified by the application, along with
goods identified in the cited registration. Evidence of use-
based, third-party registrations serves to suggest that the
goods are of a type which may emanate from a single source. See
In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993). We
find the goods to be in-part identical and otherwise closely
related.
Because the goods described in the application and the
cited registration are in-part identical, we must presume that
the channels of trade and classes of purchasers are the same.
Serial No. 77967215
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See 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”); In
re Smith and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994)
(“Because the goods are legally identical, they must be presumed
to travel in the same channels of trade, and be sold to the same
class of purchasers”). Additionally, there is nothing in the
recital of goods in either the cited registration or the
application that limits either registrant’s or applicant’s
channels of trade. See In re Linkvest S.A., 24 USPQ2d 1716,
1716 (TTAB 1992) (because there are no limitations as to
channels of trade or classes of purchasers in either the
application or the cited registration, it is presumed that the
registration and the application move in all channels of trade
normal for those services, and that the services are available
to all classes of purchasers for the listed services). In other
words, there is nothing that prevents the applicant’s “footwear”
from being sold in the same stores and to the same classes of
consumers that purchase registrant’s “footwear” as well.
Accordingly, we find that these du Pont factors weigh heavily in
favor of finding a likelihood of consumer confusion.
The Marks
Preliminarily, we note that the more similar the goods at
issue, the less similar the marks need to be for the Board to
Serial No. 77967215
5
find a likelihood of confusion. Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir.
1992). We consider and compare the appearance, sound,
connotation and commercial impression of the marks in their
entireties. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed.
Cir. 2005).
In comparing the marks, we are mindful that the test is not
whether the marks can be distinguished when subjected to a side-
by-side comparison, but rather whether the marks are
sufficiently similar in terms of their overall commercial
impression so that confusion as to the source of the goods
and/or services offered under the respective marks is likely to
result. San Fernando Electric Mfg. Co. v. JFD Electronics
Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741
(TTAB 1991), aff'd unpublished, No. 92-1086 (Fed. Cir. June 5,
1992). The proper focus is on the recollection of the average
customer, who retains a general rather than specific impression
of the marks. Winnebago Industries, Inc. v. Oliver & Winston,
Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott
Paper Co., 190 USPQ 106, 108 (TTAB 1975).
The mark in the cited registration consists solely of the
letters “BFFLZ,” in standard character form. As this is simply
a string of letters, it has no clear connotation or commercial
impression. However, the examining attorney has submitted
several entries into the record, showing that consumers perceive
Serial No. 77967215
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the term “BFFLZ” to mean “Best Friends for Life.” Some examples
include the following:

What does BFFLz mean?
Best Answer: Best friends for life. . . . they think
its [sic] even cooler to add the z.
Other Answers: best friends for life
Yahoo Answers; answers.yahoo.com.

BFFLz stands for Best friends for life.
Sweethearts.blogspots.com

Bfflz=best friends for life; You Tube; www.youtube.com

Oh yea my bfflz (Best friends for life) are so awesome
and funny I absolutely luv them there [sic] so awesome
and they certinly [sic] know how to dance!!
http//cuteycinnamon.blogspot.com

BFFLZ is Best Friends for Life.
Best Friends for life. Haha. I heard my sister use
it, she’s fourteen. Had to steal it. The Z on the
end makes it THAT much cooler. Mylifeisaverage.com

Applicant’s mark includes the term BFFL, BEST FRIENDS FOR
LIFE! and design. This is in sight and sound somewhat longer
than the mark in the cited registration. However, it
incorporates the letters “BFFL” from the mark in the cited
registration. In addition, consumers are often known to use
shortened forms of names, and it is likely that applicant’s
mark, also, will be referred to – especially by those most
likely to be attracted to these products -- by the shortened
“BFFL.” See In re Abcor Development Corp., 588 F.2d 811, 200
USPQ 215, 219 (CCPA 1978) (Rich, J., concurring: “the users of
language have a universal habit of shortening full names – from
haste or laziness or just economy of words”).
Serial No. 77967215
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Furthermore, as the evidence shows that the connotation and
commercial impression of the mark in the cited registration is
likely to be “best friends for life,” it would appear that the
commercial impression of both marks is the same. In this
regard, applicant argued in its August 20, 2010 response to
office action that “the cited mark means BEST FEET FOR LIFE as
evidenced by the print out of a web page from the registrant’s
web site attached hereto as Exhibit A.” However, applicant did
not attach the exhibit, and there is no evidence of record of
any other meaning, connotation, or commercial impression of
“BFFLZ” besides “best friends for life.” Applicant agrees that
the BFFLZ mark is arbitrary for the goods in the cited
registration. Id.
Regarding the design aspect of applicant’s mark, we find
the slight flower design to be a less significant portion of the
mark, since consumers are likely to call for, or refer to, the
goods by their name. CBS Inc. v. Morrow, 708 F.2d 1579, 1581-82
(Fed. Cir. 1983); In re Dakin’s Miniatures Inc., 59 UPSQ2d 1593,
1596 (TTAB 2001); In re Appetito Provisions Co., Inc., 3 USPQ2d
1553, 1554 (TTAB 1987). The flower design, because it is small
and surrounds the letters “BFFL,” serves to draw attention to
the word portion. Meanwhile, since the mark in the cited
registration is registered in standard character format, it
might be displayed in any of a number of different ways,
including one resembling applicant’s mark. See Citigroup Inc.
v. Capital City Bank Group Inc., 98 USPQ2d 1253, 1259 (Fed. Cir.
2011) (“If the registrant ... obtains a standard character mark
Serial No. 77967215
8
without claim to ‘any particular font style, size or color,’ the
registrant is entitled to depictions of the standard character
mark regardless of font, style, size, or color, not merely
‘reasonable manners’ of depicting its standard character mark.”)
Viewing the marks in their entireties, we find that the
strong similarities in commercial impression outweigh the
differences of the marks as to their sight and sound, and this
du Pont factor weighs in favor of finding a likelihood of
consumer confusion.
Conclusion
In summary, we have carefully considered all of the
evidence and arguments of record relevant to the pertinent du
Pont likelihood of confusion factors. We conclude that with
legally identical goods travelling in the same channels of
trade, and similar marks with similar connotations, there is a
likelihood of confusion between applicant’s mark BFFL! BEST
FRIEND FOR LIFE! and design, for which it seeks registration for
“footwear, shirts, pants, jackets and headwear,” and the
registered mark BFFLZ for “footwear.”
Decision: The refusal to register is affirmed.