Bullet Line, LLC

Trademark Trial and Appeal Board

Nov 22, 2016

No. 86520542 (T.T.A.B. Nov. 22, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: November 22, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Bullet Line, LLC
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Serial No. 86520542
Serial No. 86520545
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Jacob H. Rooksby of Cohen & Grigsby, for Bullet Line, LLC.

John M. Gartner, Trademark Examining Attorney, Law Office 102,
Mitchell Front, Managing Attorney.
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Before Taylor, Bergsman and Ritchie,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Bullet Line, LLC (“Applicant”) seeks registration on the Principal Register of the
mark HUMPHREYLINE (in standard characters)1 and USMADE HUMPHREY

1 Application Serial No. 86520545 was filed on January 31, 2015, based upon Applicant’s
claim of first use anywhere and use in commerce since at least as early as November 1, 2004.
The application contains other goods in classes 5, 21 and 28 that are not subject to this
refusal.
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LINE and design, shown below,2 both for, as relevant, “Non-medicated balms for use
on skin and lips; sunscreen creams,” in Class 3.

The Trademark Examining Attorney has refused registration of Applicant’s
marks under Section 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d), for the
goods in Class 3 only, on the ground that Applicant’s marks so resemble the registered
mark HUMPHREYS, in standard character form, for, inter alia, “facial and skin
cleansers; skin toners and moisturizers; sun screen preparations; non-medicated skin
and body lotions containing witch hazel and witch hazel used for cosmetic purposes,”
in Class 3, as to be likely to cause confusion.3
After the Trademark Examining Attorney made the refusals final, Applicant
appealed to this Board. We affirm the refusals to register.
We consolidate the appeals because they involve common questions of fact and
law. See In re Anderson, 101 USPQ2d 1912, 1915 (TTAB 2012); TBMP § 1214 (June
2016). The references to the record are to Application Serial No. 86520542 unless
otherwise indicated.

2 Application Serial No. 86520542 was filed on January 31, 2015, based upon Applicant’s
claim of first use anywhere and use in commerce since at least as early as November 1, 2004.
Applicant disclaimed the exclusive right to use the term “USMADE.” The application
contains other goods in classes 5, 21 and 28 that are not subject to this refusal.
3 Registration No. 3556267, issued January 6, 2009; Sections 8 and 15 declarations accepted
and acknowledged.
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Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on the issue of
likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973) (“DuPont”) (cited in B&B Hardware, Inc. v. Hargis Ind.,
Inc., __ U.S. __, 135 S.Ct.1293, 113 USPQ2d 2045, 2049 (2015)); see also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have
considered each DuPont factor that is relevant and for which there is evidence of
record. See M2 Software, Inc. v. M2 Commc’n, Inc., 450 F.3d 1378, 78 USPQ2d 1944,
1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232,
1242 (TTAB 2015) (“While we have considered each factor for which we have
evidence, we focus our analysis on those factors we find to be relevant.”). In any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the similarities between the goods. See In re Chatam Int’l Inc., 380
F.2d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004); 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.”). See also In re
i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB 2015).
A. The similarity or dissimilarity and nature of the goods and the established,
likely-to-continue channels of trade.

Applicant is seeking to register its mark for, inter alia, “sunscreen creams,” and
the cited mark has been registered for “sun screen preparations.” The word
“preparation” is defined, inter alia, as “a mixture that has been made especially for
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use a medicine, food, or treatment for your skin.”4 The broadly worded “sun screen
preparations” encompasses “sunscreen creams” because sunscreen creams are a
preparation (i.e., a treatment for your skin).5 See In re Hughes Furniture Indus., Inc.,
114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded identification of
‘furniture’ necessarily encompasses Registrant’s narrowly identified ‘residential and
commercial furniture.’”). Because “sun screen preparations” encompass “sunscreen
creams,” the goods are in part identical. Under this DuPont factor, the Trademark
Examining Attorney need not prove, and we need not find, similarity as to each and
every product listed in the description of goods. It is sufficient for a refusal based on
likelihood of confusion that relatedness is established for any item encompassed by
the identification of goods in a particular class in the application. Tuxedo Monopoly,
Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In
re i.am.symbolic, llc, 116 USPQ2d at 1409; Inter IKEA Sys. B.V. v. Akea, LLC, 110
USPQ2d 1734, 1745 (TTAB 2014).
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

4 MacMillan Dictionary (macmillandictioary.com) attached to the November 11, 2015
Office Action.
5 Applicant contends that “preparations are distinct from creams. … Preparations connote
medicinal or pharmaceutical products that may require combinations with other products, or
treatment by a professional, before being ready for consumer use. … Applicant’s point is that
PREPARATION connotes medicinal or pharmaceutical products, which is exactly what the
cited definition of the word suggests.” Applicant’s Brief, pp. 4-5 (4 TTABVUE 5-6). We
disagree. Applicant misreads the definition of the word “preparation” so as to omit “a mixture
made especially for a … treatment for your skin.” Further, Applicant’s contention that
preparations connote medicinal or pharmaceutical products is argument unsupported by any
facts. See In re U.S. Tsubaki, Inc., 109 USPQ2d 2002, 2006 (TTAB 2014) (statements in a
brief cannot take the place of evidence).
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are the same, at least with respect to the identical goods. See In re Viterra Inc., 671
F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (legally identical goods are
presumed to travel in same channels of trade to same class of purchasers); In re
Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where there
are legally identical goods, the channels of trade and classes of purchasers are
considered to be the same); United Global Media Grp., Inc. v. Tseng, 112 USPQ2d
1039, 1049 (TTAB 2014); American Lebanese Syrian Associated Charities Inc. v. Child
Health Research Institute, 101 USPQ2d 1022, 1028 (TTAB 2011).
B. The similarity or dissimilarity of the marks.
We now turn to the DuPont likelihood of confusion factor focusing on the similarity
or dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. In re E. I. du Pont De Nemours & Co., 177 USPQ at 567.
In a particular case, “two marks may be found to be confusingly similar if there are
sufficient similarities in terms of sound or visual appearance or connotation.”
Kabushiki Kaisha Hattori Seiko v. Satellite Int’l, Ltd., 29 USPQ2d 1317, 1318 (TTAB
1991), aff’d mem., 979 F.2d 216 (Fed. Cir. 1992) (citation omitted). See also Eveready
Battery Co. v. Green Planet Inc., 91 USPQ2d 1511, 1519 (TTAB 2009) (quoting Krim-
Ko Corp. v. Coca-Cola Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is
sufficient if the similarity in either form, spelling or sound alone is likely to cause
confusion.”)).
In comparing the marks, we are mindful that where, as here, the goods are in part
identical, the degree of similarity necessary to find likelihood of confusion need not
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be as great as where there is a recognizable disparity between the goods. Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012); Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23
USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen Enterprises Inc. v. Rind, 85 USPQ2d
1104, 1108 (TTAB 2007); Schering-Plough HealthCare Products Inc. v. Ing-Jing
Huang, 84 USPQ2d 1323, 1325 (TTAB 2007).
“The proper test is not a side-by-side comparison of the marks, but instead
‘whether the marks are sufficiently similar in terms of their commercial impression’
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 101 USPQ2d at
1721; see also 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 mem., 972 F.2d 1353 (Fed. Cir. 1992). The
proper focus is on the recollection of the average customer, who retains a general
rather than specific impression of the marks. Geigy Chem. Corp. v. Atlas Chem.
Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon,
102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v. Oliver & Winston,
Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ
106, 108 (TTAB 1975). Because the goods at issue are sunscreen preparations and
creams, the average customer is an ordinary consumer.
1. HUMPHREYLINE (in standard characters).
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Because Applicant’s mark HUMPHREYLINE is in standard characters, it is not
limited to any specific depiction. The rights associated with a mark in standard
characters reside in the wording, and not in any particular display. Thus, Applicant
is entitled to all depictions of its standard character mark regardless of the font style,
size, or color. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909-11 (Fed. Cir.
2012); Citigroup Inc. v. Capital City Bank Group, Inc., 637 F.3d 1344, 98 USPQ2d
1253, 1259 (Fed. Cir. 2011); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937,
939 (Fed. Cir. 1983) (rejecting argument that a mark in standard character format
(typed) is distinct from a mark in a logo format; “[b]y presenting its mark in a typed
drawing, a difference cannot legally be asserted by that party” (emphasis in original));
In re RSI Systems, LLC, 88 USPQ2d 1445, 1448 (TTAB 2008); In re Pollio Dairy
Products Corp., 8 USPQ2d 2012, 2015 (TTAB 1988).
In fact, the specimen showing Applicant’s mark in use displays
HUMPHREYLINE as shown below engendering the commercial impression
“Humphrey Line.”

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We may look to how a party uses a mark to determine the commercial impression
sought to be created.
[T]he trade dress may nevertheless provide evidence of
whether the word mark projects a confusingly similar
commercial impression. Applicant's labels support rather
than negate that of which opposer complains: that SPICE
VALLEY inherently creates a commercial impression
which is confusingly similar to that of SPICE ISLANDS.
Specialty Brands, Inc. v. Coffee Bean Distributors, Inc., 748 F.2d 669, 223 USPQ 1281,
1284 (Fed. Cir. 1984); see also American Rice, Inc. v. H.I.T. Corp., 231 USPQ 793, 796
(TTAB 1986) (“we may take into account whether the trade dress of packages or labels
in the application file as specimens, or otherwise in evidence, may demonstrate that
the trademark projects a confusingly similar commercial impression”).
As seen in Applicant’s specimen of use, HUMPHREYLINE is used to identify a
variety of products offered by Applicant. Under these circumstances, the word “line”
has the definition listed below:
Several products forming a set, for example because they
are all of the same type or are all products by the same
company. The company is broadening its product line to
attract more buyers. a [sic] new line of perfume.6
As such, the “line” component of the mark HUMPHREYLINE is descriptive and has
less significance than the “Humphrey” component of the mark. It is well-settled that
descriptive matter may have less significance in likelihood of confusion
determinations. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842,
1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court has noted that the

6 MacMillan Dictionary (macmillandictioary.com) attached to the May 6, 2015 Office
Action.
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‘descriptive component of a mark may be given little weight in reaching a conclusion
on the likelihood of confusion.’”) (quoting In re National Data Corp., 753 F.2d 1056,
224 USPQ 749, 752 (Fed. Cir. 1985)); In re Dixie Rests. Inc., 105 F.3d 1405, 41
USPQ2d 1531, 1533-34 (Fed. Cir. 1997). 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., 224 USPQ at 751.
Further emphasizing the importance of the name “Humphrey” in Applicant’s
mark HUMPHREYLINE is the fact that “Humphrey” is the first part of the mark.
See Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (“Veuve” is the most prominent part of
the mark VEUVE CLICQUOT because “veuve” is the first word in the mark and the
first word to appear on the label); Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering
the marks, consumers will first notice the identical lead word); Presto Products Inc.
v. Nice-Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first
part of a mark which is most likely to be impressed upon the mind of a purchaser and
remembered”); Hercules Inc. v. National Starch and Chemical Corp., 223 USPQ 1244,
1246 (TTAB 1984) (“considering the marks NATROL and NATROSOL in their
entireties, the clearly dominant aspect of both marks is that the first four letters and
the final two are the same.”).
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The mark in the cited registration is HUMPHREYS. Registrant’s use of the plural
form of the name HUMPHREY “is almost totally insignificant in terms of the
likelihood of confusion of purchasers.” In re Pix of Am., Inc., 225 U.S.P.Q. 691, 692
(TTAB 1985); see also Wilson v. Delaunay, 245 F.2d 877, 114 USPQ 339, 341 (CCPA
1957) (finding no material difference between the singular and plural forms of
ZOMBIE such that the marks were considered the same mark); Weidner Publ’ns, LLC
v. D&D Beauty Care Co., 109 USPQ2d 1347, 1355 (TTAB 2014) (SHAPES is similar
to SHAPE).
Because registrant’s use of the plural rather than singular form of the name
HUMPHREY is insignificant in our likelihood of confusion analysis, Applicant
essentially has incorporated Registrant’s entire mark in its mark HUMPHREYLINE.
While there is no explicit rule that likelihood of confusion automatically applies
where an applicant’s mark contains in part the whole of a previously registered mark,
the fact that the cited registered mark is subsumed by Applicant’s mark increases
the similarity between the two. See, e.g., In re Toshiba Med. Sys. Corp., 91 USPQ2d
1266, 1271 (TTAB 2009) (applicant’s mark VANTAGE TITAN for medical magnetic
resonance imaging diagnostic apparatus confusingly similar to TITAN for medical
ultrasound diagnostic apparatus); In re El Torito Rests., Inc., 9 USPQ2d 2002, 2004
(TTAB 1988) (applicant’s mark MACHO COMBOS for food items confusingly similar
to MACHO for restaurant entrees); In re Riddle, 225 USPQ 630, 632 (TTAB 1985)
(RICHARD PETTY’S ACCU TUNE for automotive service centers confusingly similar
to ACCU-TUNE for automotive testing equipment).
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Applicant’s addition of the descriptive word “line” to the dominant element
HUMPHREY is insufficient, both from the standpoint of the marks’ appearance,
sound, connotation and commercial impression to distinguish the marks
HUMPHREYLINE and HUMPHREYS. Accordingly, we find that the marks are
similar in terms of appearance, sound, connotation and commercial impression.
2. USMADE HUMPHREYLINE and design.
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, the analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entire
marks, not just part of the marks. See Stone Lion Capital Partners, LP v. Lion Capital
LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); In re National Data
Corp., 224 USPQ at 751; 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”). However, as noted above, 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., 224 USPQ
at 751. For the reasons discussed below, we find that HUMPHREY is the dominant
part of Applicant’s mark; that is, it is HUMPHREY that consumers will remember
and use to call for Applicant’s products.
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The term HumphreyLine is the central feature of Applicant’s mark because it is
printed in large type and the other components of the mark (i.e., the term USMADE
and the flag design) are subordinate thereto, appearing in either a smaller or a less
prominent typeface. Here, too, the stylization of HumphreyLine engenders the
commercial impression “HUMPHREY LINE.”
With respect to the design elements of Applicant’s marks, the words are normally
accorded greater weight because the words are likely to make an impression upon
purchasers, would be remembered by them, and would be used by them to request
the goods. See In re Viterra Inc., 101 USPQ2d at 1908 and 1911 (Fed. Cir. 2012) (citing
CBS Inc. v. Morrow, 708 F. 2d 1579, 1581-82, 218 USPQ 198, 200 (Fed. Cir 1983));
Sweats Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798
(Fed. Cir. 1987); Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218
USPQ 390 (Fed. Cir. 1983).
Applicant has disclaimed the exclusive right to use the term “USMADE” because
it is descriptive; it directly informs consumers that the products are made in the
United States. As noted above, descriptive matter may have less significance in
likelihood of confusion determinations. See Cunningham v. Laser Golf Corp., 55
USPQ2d at 1846; In re Dixie Rests. Inc., 41 USPQ2d at 1533-34; In re National Data
Corp., 224 USPQ at 752.
For reasons discussed above, the word “line” in Applicant’s mark HUMPREYLINE
is descriptive and has little significance in distinguishing the marks.
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Finally, Applicant’s mark USMADE HUMPREYLINE and design incorporates
Registrant’s entire mark albeit in the plural form. In this situation, we find that
consumers will shorten Applicant’s mark to HUMPHREYS or HUMPHREY. “[U]sers
of language have a universal habit of shortening full names – from haste or laziness
or just economy of words. Examples are: automobile to auto; telephone to phone;
necktie to tie; gasoline service station to gas station.” In re Abcor Development Corp.,
588 F.2d 511, 200 USPQ 215, 219 (CCPA 1978) (J. Rich, concurring).
[C]ompanies are frequently called by shortened names,
such as Penney’s for J.C. Penney’s, Sears for Sears and
Roebuck (even before it officially changed its name to Sears
alone), Ward’s for Montgomery Ward’s, and Bloomies for
Bloomingdales.
Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1333 (TTAB 1992).
In view of the foregoing, we find that Applicant’s mark USMADE
HUMPHREYLINE and design is similar to the Registered mark HUMPHREYS in
appearance, sound, connotation and commercial impression.
C. Balancing the factors.
Because the marks are similar, the goods are in part identical and there is a
presumption that the goods move in the same channels of trade, we find that
Applicant’s marks HUMPHREYLINE and USMADE HUMPHREYLINE and design
for “non-medicated balms for use on skin and lips; sunscreen creams” are likely to
cause confusion with the registered mark HUMPHREYS for “facial and skin
cleansers; skin toners and moisturizers; sun screen preparations; non-medicated skin
and body lotions containing witch hazel and witch hazel used for cosmetic purposes.”
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Decision: The refusals to register Applicant’s marks HUMPHREYLINE and
USMADE HUMPHREYLINE and design for the goods listed in Class 3 are affirmed.
The application will proceed to publication for the goods listed in Classes 5, 21 and
28.