Big Time Holdings, Inc.

Trademark Trial and Appeal Board

Apr 18, 2012

No. 85057816 (T.T.A.B. Apr. 18, 2012)

Mailed:
April 18, 2012
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Big Time Holdings, Inc.

________

Serial No. 85057816
_______

Robert S. Beiser of Vedder Price PC for Big Time Holdings,
Inc.

Kapil K. Bhanot, Trademark Examining Attorney, Law Office
108 (Andrew Lawrence, Managing Attorney).
_______

Before Quinn, Bucher and Taylor, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Big Time Holdings, Inc. seeks registration on the
Principal Register of the mark BOXMASTER (in standard
character format) for “gloves” in International Class 25.1
The Trademark Examining Attorney issued a final
refusal to register this designation based upon Section
2(d) of the Trademark Act, 15 U.S.C. § 1052(d). The
Trademark Examining Attorney has taken the position that

1 Application Serial No. 85057816 was filed on June 8, 2010,
based upon applicant’s allegation of a bona fide intention to use
the mark in commerce.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 85057816
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applicant’s mark, when used in connection with gloves, so
resembles the mark, THE BOXMASTERS, registered for
“t-shirts,” also in International Class 25,2 as to be likely
to cause confusion, to cause mistake or to deceive.
After the Trademark Examining Attorney made the
refusal final, applicant appealed to this Board. Applicant
and the Trademark Examining Attorney have fully briefed the
issues in this appeal. We affirm the refusal to register.
Arguments of applicant and the Trademark Examining Attorney
In urging registrability, applicant contends that the
Trademark Examining Attorney has refused to take into
consideration the actual nature of registrant’s enterprise
within the larger marketplace; that in reality, applicant
is the senior user as evidenced by Reg. No. 3178515 for the
mark BOXMASTER used in connection with protective work
gloves; that gloves generally are well within applicant’s
natural zone of expansion; that fans of a musical band
wanting to buy a shirt featuring their favorite band are

2 Registration No. 3728904 issued to Billy Bob Thornton on
April 22, 2003; Section 8 affidavit accepted and Section 15
affidavit acknowledged. Additional classes are included in the
cited registration, but were not deemed relevant to the current
refusal. These include: “pre-recorded compact discs, featuring
music, musical performances; downloadable musical sound
recordings” in International Class 9; “posters, pictures and
stickers” in International Class 16; and “entertainment services
in the nature of live performances featuring musical groups” in
International Class 35.
Serial No. 85057816
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quite knowledgeable about their music, and hence, fairly
sophisticated; and that the evidence put forward by the
Trademark Examining Attorney does not support a conclusion
that t-shirts and gloves are highly related goods.
Applicant argues that “[c]ommon sense dictates that gloves
and t-shirts are not related” and that the “[Trademark
Examining Attorney’s] logic, absent considerations from the
marketplace, produces truly absurd results.” Applicant
takes the position that “[t]his Board routinely reverses
[Trademark Examining Attorneys] who try to find a
relatedness of t-shirts with other types of [apparel].”
By contrast, the Trademark Examining Attorney argues
that the marks are highly similar and that the weight of
the evidence in this record supports the relatedness of
applicant’s type of gloves to registrant’s type of
t-shirts.
Likelihood of Confusion
We turn then to a consideration of the issue of
likelihood of confusion. Our determination of likelihood
of confusion is based upon our analysis of all of the
probative facts in evidence that are relevant to the
factors bearing on this issue. See In re E. I. du Pont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973).
Serial No. 85057816
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See also, In re Majestic Distilling Co., Inc., 315 F.3d
1311, 65 USPQ2d 1201 (Fed. Cir. 2003); and In re Dixie
Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997). In any likelihood of confusion analysis, however,
two key, although not exclusive, considerations are the
similarities between the marks and the relationship between
the goods and/or services. See Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA
1976).
Applicant appeals to our sense of equity and fairness,
arguing that in reality, it has common law priority rights
superior to the rights of applicant. However, the alleged
common law priority rights of applicant are largely
irrelevant when faced with a cited registration in the
ex parte context, and there are several good reasons why
this purported fact cannot change the outcome herein.
The Trademark Examining Attorney has correctly
contended that the Office must resolve any doubt about
likelihood of confusion against an applicant (who often is
the “newcomer”). However, applicant argues that inasmuch
as it is the senior user of this mark (and registrant
obtained its registration over applicant’s previously-
registered mark), it is inappropriate to resolve any doubt
about likelihood of confusion against applicant.
Serial No. 85057816
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The sole issue before us now is whether applicant’s
mark BOXMASTER for gloves is likely to cause confusion with
the cited mark THE BOXMASTERS, registered for t-shirts.
In September 2007 (when the Office examined the
application that issued into the cited registration),
applicant had a registration for “protective work gloves”
in International Class 9. Of course, the application in
the case at bar is for “gloves” in International Class 25.
Hence, the question before us today is not exactly the
converse of the situation in September 2007 when the Office
examined the application that issued into the cited
registration.
By now seeking registration of the mark BOXMASTER for
“gloves,” applicant is seeking to broaden the scope of its
protection to cover a wider range of products, that is,
gloves of all types. Thus, applicant’s argument is not
persuasive to allow the registration sought herein. In re
Loew’s Theatres, Inc., 769 F.2d 764, 226 USPQ 865, 869
(Fed. Cir. 1985) (“Nothing in the statute provides a right
ipso facto to register a mark for additional goods when
items are added to a company’s line or substituted for
other goods covered by a registration. Nor do the [United
States Patent and Trademark Office] rules afford any
greater rights … ”); In re SL&E Training Stable, Inc.,
Serial No. 85057816
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88 USPQ2d 1216, 1219-20 (TTAB 2008); and In re Sunmarks
Inc., 32 USPQ2d 1470, 1472 (TTAB 1994). Accordingly, we
are not persuaded by applicant’s argument grounded on its
alleged common law priority rights or ownership of its
earlier registration of the mark BOXMASTER for “protective
work gloves.”
We can only speculate as to why the cited registration
having t-shirts in its identification issued over
applicant’s registration, but the specific channels of trade
for applicant’s “protective work gloves” may well have been
part of that reasoning.
As to the argument that applicant’s prior registration
and the cited registration peacefully coexisted for years,
this may be due to the fact that applicant’s registration
lists “protective work gloves,” a specific type of item.
Here, applicant is attempting to expand its registration
rights to cover all types of gloves.
In addition to applicant’s arguments about the
coexistence of its earlier registration with the cited
registration, applicant contends that its gloves are within
the natural scope of expansion of its protective work
gloves and hence confusion is unlikely to occur in the
marketplace. However, as we recently observed, “the
concept of expansion of trade is generally addressed in the
context of the issue of priority in an inter partes
Serial No. 85057816
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proceeding” [In re 1st USA Realty Professionals, Inc.,
84 USPQ2d 1581 (TTAB 2007)], but priority of use is not an
issue in an ex parte proceeding.3 Rather, in this ex parte
context, we apply the traditional analysis of the
relatedness of the involved goods, and have not considered
applicant’s arguments as to “expansion of trade.”
Furthermore, we are entirely unpersuaded by this
argument because factually, the record supports the
conclusion that applicant’s gloves are more closely related
to registrant’s t-shirts than are applicant’s protective
work gloves. In sum, the existence of applicant’s
registration is largely irrelevant to our likelihood of
confusion determination. See Jackes-Evans Mfg. Co. v.
Jaybee Mfg. Corp., 481 F.2d 1342, 179 USPQ 81, 83 (CCPA
1973); and Key Chemicals, Inc. v. Kelite Chemicals Corp.,
464 F.2d 1040, 175 USPQ 99, 101 (CCPA 1972) (a trademark
owner cannot by normal expansion of its business extend the
use of its trademark to goods not covered by its previous
registration, where the result would be a likelihood of
confusion caused by similarity of that mark to a mark

3 In fact, even within an inter partes proceeding, we have
found that the doctrine of a natural zone of expansion requires a
specific, complicated analysis that does not appreciably add to
our understanding of the relatedness of the goods in most cases.
General Mills, Inc. and General Mills IP Holdings II, LLC v. Fage
Dairy Processing Industry S.A., 100 USPQ2d 1584 (TTAB 2011).

Serial No. 85057816
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already registered by a prior, intervening user for the
same or similar goods).
Certainly, if both applicant and registrant truly
believe that in the actual marketplace there is no
likelihood of confusion between these items of apparel,
applicant could have sought registrant’s written consent to
its registration of this mark. If applicant had submitted
such a consent agreement, the Trademark Examining Attorney
and, if necessary, this Board, would have obviously given
great weight to such a written consent from the cited
registrant. See Bongrain International (American)
Corporation v. Delice de France Inc., 811 F.2d 1479,
1 USPQ2d 1775 (Fed. Cir. 1987); and In re E.I. du Pont
de Nemours & Co., 177 USPQ at 568.
The Court of Appeals for the Federal Circuit has
clarified for us the appropriate presumptions to apply
during an ex parte prosecution and appeal. Accordingly, in
cases like the one at bar involving confusingly similar
marks, absent a consent agreement, it is the responsibility
of the Office to afford rights to registrants without
constantly subjecting them to the financial and other
burdens of opposition proceedings. Otherwise protecting
their rights under the Lanham Act would be an onerous
Serial No. 85057816
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burden for registrants. In re Dixie Restaurants Inc.,
41 USPQ2d at 1535.
The Similarity of the Marks
As to the first du Pont factor, we compare the
similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression. Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
73 USPQ2d 1689, 1692 (Fed. Cir. 2005).
Because the similarity or dissimilarity of the marks
is determined based upon a comparison of the marks in their
entireties, the decision must be based upon the entire
marks, not just select parts of the marks. In re National
Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985); see also Franklin Mint Corp. V. Master Mfg. Co.,
667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) [“It is
axiomatic that a mark should not be dissected and
considered piecemeal; rather, it must be considered as a
whole in determining likelihood of confusion”]. On the
other hand, different features may be analyzed to determine
whether the marks are similar. Price Candy Company v. Gold
Medal Candy Corporation, 220 F.2d 759, 105 USPQ 266, 268
(CCPA 1955). In fact, there is nothing improper in stating
Serial No. 85057816
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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., 224 USPQ
at 751.
In the case at hand, we find specifically that both
marks contain the dominant feature “BOXMASTER.” While not
identical, applicant’s thirteen letter mark is visually
quite similar to registrant’s nine-letter mark. The
pronunciation is similar for the last three syllables. As
to connotation, the word “The” does not add any source-
identifying significance.4 Furthermore, when comparing and
contrasting marks, we find that marks consisting of the
singular and plural forms of the same root term are
essentially the same mark.5 Accordingly, while the marks

4 See, e.g., In re The Place, Inc., 76 USPQ2d 1467, 1468
(TTAB 2005) (holding THE GREATEST BAR merely descriptive for
restaurant and bar services); In re Weather Channel, Inc., 229
USPQ 854, 856 (TTAB 1985) (holding THE WEATHER CHANNEL merely
descriptive for weather information services and television
programming relating to weather); In re The Computer Store, Inc.,
211 USPQ 72, 74-75 (TTAB 1981) (holding THE COMPUTER STORE merely
descriptive for retail outlets featuring computers).
5 See Wilson v. Delaunay, 245 F.2d 877, 114 USPQ 339, 341
(CCPA 1957) (no material difference between the singular and
plural forms of ZOMBIE such that the marks were considered the
same mark); In re Pix of Am., Inc., 225 USPQ 691, 692 (TTAB 1985)
(the pluralization of NEWPORT is “almost totally insignificant”
in terms of likelihood of confusion among purchasers); In re
Sarjanian, 136 USPQ 307, 308 (TTAB 1962) (no material difference
between the singular and plural forms of RED DEVIL).

Serial No. 85057816
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are not identical, we find that as applied to these
respective goods, they create very similar commercial
impressions. Hence, this critical du Pont factor strongly
favors a finding of likelihood of confusion.
Applicant argues that in light of the dissimilarities
in these marks, the Trademark Examining Attorney must be
wrong because in decisions issued over the past several
years, we have reversed other Trademark Examining Attorneys
where the marks were identical:
Since January 2010, this Board has reversed at
least ten Examiners who refused to push for
allowance a mark citing an identical (appearance)
Registration.

Applicant’s blanket reference to earlier Board
reversals on appeals where the respective marks were
identical is of little probative value in determining
whether there is likelihood of confusion herein. As often
stated, each case must stand on its own record. It should
not be surprising that on occasion an applicant and a
registrant may have virtually identical marks, but in
weighing all the relevant du Pont factors (especially the
relationship of the goods/services), we may well find that
we are not convinced of a likelihood of confusion.
However, as we conclude below, after reviewing all the
Serial No. 85057816
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relevant factors in the case at bar, a finding of
likelihood of confusion is clearly warranted herein.
Relationship of the Goods
We turn then to the du Pont factor focused on the
relationship of the goods involved herein. Although there
is no per se rule governing likelihood of confusion cases
involving all types of wearing apparel [see In re British
Bulldog, Ltd., 224 USPQ 854 (TTAB 1984)], the Trademark
Examining Attorney correctly points to a series of
decisions where the Board and our primary reviewing Court
have found a relationship between various items of
clothing.6
Applicant argues that the Trademark Examining Attorney
evidence must show “something more” than simply that
similar marks are used on clothing items. While we are
aware of the utilization of this requirement in cases
involving food and beverage products versus restaurant

6 See Cambridge Rubber Co. v. Cluett, Peabody & Co., 286 F.2d
623, 128 USPQ 549 (CCPA 1961) (women’s boots related to men’s and
boys’ underwear); Jockey Int’l, Inc. v. Mallory & Church Corp.,
25 USPQ2d 1233 (TTAB 1992) (underwear related to neckties); In re
Melville Corp., 18 USPQ2d 1386 (TTAB 1991) (women’s pants,
blouses, shorts and jackets related to women’s shoes); In re Pix
of Am., Inc., 225 USPQ 691 (TTAB 1985) (women’s shoes related to
outer shirts); In re Mercedes Slacks, Ltd., 213 USPQ 397 (TTAB
1982) (hosiery related to trousers); In re Cook United, Inc.,
185 USPQ 444 (TTAB 1975) (men’s suits, coats, and trousers
related to women’s pantyhose and hosiery); Esquire Sportswear
Mfg. Co. v. Genesco Inc., 141 USPQ 400 (TTAB 1964) (brassieres
and girdles related to slacks for men and young men).
Serial No. 85057816
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services [See, e.g., In re Coors Brewing Co., 343 F.3d
1340, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003); and In re Opus
One Inc., 60 USPQ2d 1812, 1814-16 (TTAB 2001)], we are not
aware of any cases wherein the “something more” requirement
has been extended outside of these types of cases. Indeed,
applicant has not cited any such cases involving clothing.
Turning then to the Trademark Examining Attorney’s
evidence of record, the following use-based, third-party
registrations (all issuing during a single month, January
2011) list both gloves and shirts:
LVR7 SAFARI AS A WAY OF LIFE8
OCEANSIDEOFLIFE9 B:SCOTT10
CATERPILLAR11
14 12
JOURNEY IS THE
DESTINATION13

While these third-party registrations are not evidence
of use, they serve to suggest that the listed goods are of
a type which may emanate from a single source. In re Mucky
Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988),
aff’d, 864 F.2d 149 (Fed. Cir. 1988). See also In re

7 Registration No. 3912456 issued on January 25, 2011.
8 Registration No. 3911186 issued on January 25, 2011.
9 Registration No. 3902222 issued on January 4, 2011.
10 Registration No. 3910733 issued on January 25, 2011.
11 Registration No. 3907101 issued on January 18, 2011.
12 Registration No. 3902211 issued on January 4, 2011.
13 Registration No. 3908084 issued on January 18, 2011.
14 Registration No. 3900551 issued on January 4, 2011.

Serial No. 85057816
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Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993).
Additionally, the Trademark Examining Attorney has placed
into the record screen prints of online advertisements
showing a single trademark used on both type of goods.
These pages show that customers of large national retailers
of sportswear and clothing are accustomed to seeing the
same mark used on gloves and shirts:

Winter
Gloves15

Men's
Shirts16

Winter
Gloves

t-shirts17

15 http://www.rei.com/category/1/q/Winter+Gloves
16 http://www.rei.com/category/4500259 [Images reformatted for
purposes of illustration].
17 http://www.llbean.com/ [Images reformatted for purposes of
illustration].
Serial No. 85057816
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18

18 http://www.runningwarehouse.com/catpage-gloves.html and
http://www.runningwarehouse.com/catpage-MRAASICS.html

Serial No. 85057816
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Winter
Gloves

t-shirts19

Applicant decries the fact that the Trademark
Examining Attorney’s evidence shows nothing more than that
(i) both gloves and t-shirts are sold within single large
websites, and (ii) a handful of registrations on TESS (the
United States Patent and Trademark Office’s public
trademark search system) list both goods. To emphasize
these points, applicant’s counsel argues that applying the
proofs put forward by the Trademark Examining Attorney, one
could conclude that “cat litter” and “motorcycle helmets”
are related because Amazon.com sells both, or that
“rabbits” are related to “hats” since applicant found
thirteen hits where both words were listed in the same
application or registration on the TESS database.20

19 http://www.jcpenney.com/ [Images taken from Trademark
Examining Attorney’s evidence of April 27, 2011, multiple pages
of images reformatted for purposes of illustration]. See pp. 10,
11, 17, 18 of April 27, 2011 Office Action.
20 Applicant’s brief at 10, 13.

Serial No. 85057816
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We disagree with applicant’s logic and rhetoric. We
find from the evidence reviewed above that the Trademark
Examining Attorney has made out a prima facie case for the
relatedness of gloves and t-shirts in the marketplace at
large, such that, if sold under highly similar marks,
consumers in the marketplace would be likely to be confused.
In turn, we find that applicant has failed to rebut this
showing.
Channels of Trade and Conditions of Sale
Applicant makes the argument that registrant is a
famous Hollywood actor – not a traditional retailer, and
hence, that these goods are limited to a niche market –
namely, through the unique trade channels associated with a
musical band. When posing the first issue on appeal,
applicant argues in its brief (at 3), as follows:
Can a Trademark Examiner deny registration and
fail to acknowledge the very nature of the
business of a Registrant when issuing a 2(d)
rejection. In this case, Registrant is a well
known and established musical group with a famous
actor as a lead singer. Historically musical
groups have sold t-shirts to their fans but not
gloves. No evidence was introduced by the
Examiner that gloves can serve as paraphernalia
in the context of this Registrant or this
industry. The only evidence introduced shows
that gloves and t-shirts may be linked or related
in the sport apparel industry, or the outdoor
equipment industry.

Serial No. 85057816
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Given the presumptions we make about registrant’s goods,
the Trademark Examining Attorney is certainly not obligated
to demonstrate that gloves routinely serve as
“paraphernalia” for popular musical groups.
In short, applicant is arguing that registrant’s
customers are dedicated fans
of Billy Bob Thornton and/or
his musical group – fans who
could not be confused into thinking that applicant’s
BOXMASTER gloves originate with Billy Bob Thornton.
Applicant also contends that registrant’s shirts are simply
collateral goods sold in support of concerts, and that
generally, all such items are emblazoned with highly
distinctive imagery and design elements associated with the
band, the album or the featured artist(s).
It is true that the cited registration issued to the
well-known singer and actor, Billy Bob Thornton, and that
the “t-shirts” listing in that multiple class registration
is surrounded by the underlying entertainment services, as
well as listings of other typical fan paraphernalia,
inter alia, musical CDs (Class 9) and posters (Class 16).
Apparently, applicant would have us read registrant’s
International Class 25 apparel listing as “T-shirts
featuring imagery of Billy Bob Thornton marketed only to
Serial No. 85057816
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loyal fans of The Boxmasters band at live musical events of
said group, or through other specialized, limited
channels.”
The problem with this type of argument is that the
comparison of the goods in our likelihood of analysis must
be based upon the goods as identified in the registration,
and not on extrinsic evidence that illustrates the goods
for which registrant may actually use its mark. There are
no restrictions on registrant’s channels of trade, the
trade dress of the t-shirts, or on its classes of potential
customers. Hence, we must presume that registrant’s
customers include all classes of retail purchasers and that
the branded t-shirts will move through all the normal trade
channels for such goods, including retail clothing outlets,
online clothing websites, etc. In re Melville Corp.,
18 USPQ2d 1386, 1389 (TTAB 1991); McDonald's Corp. v.
McKinley, 13 USPQ2d 1895, 1899 (TTAB 1989); RE/MAX of Am.,
Inc. v. Realty Mart, Inc., 207 USPQ 960, 964-65 (TTAB
1980). Thus, applicant’s attempt to limit impermissibly
registrant’s recited goods (i.e., by evidence about
registrant that applicant placed into the record) is
unavailing. In re Bercut-Vandervoort & Co., 229 USPQ 763,
Serial No. 85057816
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764 (TTAB 1986).21 Given the nature of the presumptions
that constrain our determinations, this factor favors a
finding of a likelihood of confusion.
As to the degree of care that will be exercised by
registrant’s current customers, applicant argues that
registrant’s customers are not impulsive ones, but rather
are fans of registrant’s music and, thus, less likely to be
confused. Again, there is no limitation in registrant’s
identification of goods regarding either the specific types
of shirts or the classes of purchasers. Thus, as noted
earlier, we presume that registrant’s customers include all
ordinary consumers, not just those who are familiar with or
are fans of registrant’s music. Even assuming that the
relevant consumers are sophisticated, the fact that many of
the purchasers of registrant’s t-shirts may be
knowledgeable in the field of electric rockabilly/country
rock music does not necessarily mean that they are immune
from source confusion. See In re Cynosure, Inc., 90 USPQ2d

21 The examining attorney characterized applicant’s argument
as constituting an “impermissible collateral attack” on the cited
registration. We do not see it as much as a collateral attack
(as in the case of an applicant’s contending that the cited
registration has been abandoned) as an impermissible attempt to
limit the scope of the registration’s identification of goods
with extrinsic evidence. Cf. In re Dixie Rests., Inc., 105 F.3d
1405, 41 USPQ2d 1531, 1534-35 (Fed. Cir. 1997).

Serial No. 85057816
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1644 (TTAB 2009); In re Decombe, 9 USPQ2d 1812 (TTAB 1988);
and In re Pellerin Milnor Corp., 221 USPQ 558 (TTAB 1983).
Moreover, there is certainly no indication in the
record that any of the goods involved in this proceeding
are expensive enough to prompt a higher standard of care on
the part of prospective consumers.
At best for applicant, this is determined to be a
neutral factor.
Period of contemporaneous use without actual confusion
Finally, we turn to the du Pont factor dealing with
the length of time during and conditions under which there
has been contemporaneous use without any evidence of actual
confusion. Applicant argues that coexistence of its prior
registration with the cited registration over a period of
several years provides strong evidence that confusion is
not likely to occur in the future.
As to the argument that applicant’s prior
registrations and the cited registration peacefully
coexisted for years, this may be due to the fact that
applicant’s registrations cover “protective work gloves,” a
specific type of item with circumscribed channels of trade.
Additionally, as to whether there has been sufficient
opportunity for confusion to occur, the record contains no
Serial No. 85057816
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indication of the level of sales or advertising of any type
of gloves by applicant under this mark. The absence of any
instances of actual confusion is a meaningful factor only
where the record indicates that, for a significant period
of time, an applicant’s sales and advertising activities
have been so appreciable and continuous that, if confusion
were likely to happen, any actual incidents thereof would
be expected to have occurred and would have come to the
attention of one or both of these trademark owners.
Similarly, we have no information concerning the nature and
extent of registrant’s use, and thus we cannot tell whether
there has been sufficient opportunity within common trade
channels for confusion to occur.
All of these enumerated issues materially reduce the
probative value of applicant’s argument regarding asserted
lack of actual confusion. Therefore, applicant’s claim
that no instances of actual confusion have been brought to
applicant’s attention is not indicative of an absence of a
likelihood of confusion. See Cunningham v. Laser Golf
Corp., 222 F.3d 943, 55 USPQ2d 1842, 1847 (Fed. Cir. 2000);
and Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768,
1774 (TTAB 1992). In any event, we are mindful of the fact
that the test under Section 2(d) of the Act is likelihood
of confusion, not actual confusion.
Serial No. 85057816
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Accordingly, the du Pont factor of the length of time
during and conditions under which there has been
contemporaneous use without evidence of actual confusion is
considered neutral.
Conclusion: Likelihood of Confusion
We have considered carefully all of the evidence made
of record and the related arguments, including any evidence
and arguments not specifically discussed in this opinion.
Based upon this record, we have no doubt that applicant’s
use of its BOXMASTER mark for gloves is likely to cause
confusion with the cited mark, THE BOXMASTERS, registered
for t-shirts. Accordingly, it is not appropriate to allow
applicant’s mark to be published.
Decision: The refusal to register the mark BOXMASTER
under Section 2(d) of the Lanham Act is hereby affirmed.