Chantellev.Seatown Hull LLC

Trademark Trial and Appeal Board

Jul 19, 2013

No. 91202473 (T.T.A.B. Jul. 19, 2013)

Mailed:
July 19, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Chantelle

v.

Seatown Hull LLC
_____

Opposition No. 91202473
to application Serial No. 85270308
filed on March 18, 2011
_____

Michael S. Culver of Millen, White, Zelano & Branigan, P.C.
for Chantelle.

William A. Travis, “Principal” for Seatown Hull LLC.1
______

Before Seeherman, Cataldo and Ritchie, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Chantelle, a French corporation, has opposed the
application of Seatown Hull LLC to register the mark
PASSIONATE HEART in standard characters for “hooded

1 Because Mr. Travis has not identified himself as an attorney,
or made an appearance as an attorney for applicant, we treat
applicant as appearing pro se.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91202473
2
sweatshirts; short-sleeved or long-sleeved t-shirts;
sweatshirts; t-shirts.”2 As grounds for opposition, opposer
has alleged that it is the owner of Registration No.
3686165 for the mark PASSIONATA and heart design and
Registration No. 3692665 for the mark PASSION MAKER in
stylized form, both for, inter alia, women’s underwear and
lingerie and for outer clothing, including shirts, tee-
shirts, sweaters and tank tops;; and that applicant’s mark
for its identified goods so resembles opposer’s registered
marks PASSIONATA and PASSION MAKER that it is likely to
cause confusion, mistake or deception, and is therefore
barred from registration by Section 2(d) of the Trademark
Act. In its answer, applicant has admitted opposer’s
ownership of its pleaded registrations, printouts of which,
taken from the USPTO TARR database and showing current
status and title, were made of record by opposer by
submitting them with the notice of opposition. Applicant
has denied the allegations that its mark is likely to cause
confusion with opposer’s mark.
Record and Objections
Each party has objected to evidence submitted by the
other under a notice of reliance, so we will address the

2 Application Serial No. 85270308, filed March 19, 2011, based
on Section 1(b) of the Trademark Act (intent-to-use).

Opposition No. 91202473
3
objections first. Applicant objects to opposer’s reliance
on applicant’s responses to opposer’s requests for
admission as not being relevant. The requests for
admission all relate to additional applications filed by
applicant for marks which include the word HEART or a heart
symbol, and applicant has been requested to admit that it
filed such applications; that the information regarding the
applications, taken from the USPTO TESS database and
attached to the requests, is correct; and that the meaning
of the heart design in certain of the marks is meant to
convey the word “heart.” In view of the fact that opposer
is relying on a mark that has a heart design, and
applicant’s mark contains the word HEART, the intended
meaning of a heart design in applicant’s other marks cannot
be said to be irrelevant to the issue in this case.
Accordingly, the objection is overruled.
Opposer has objected to much of the evidence submitted
by applicant under notice of reliance. Therefore, in order
not to make this opinion inordinately long, we will rule on
the objections without repeating the parties’ arguments.
With respect to the evidence printed from websites, in
Safer Inc. v. OMS Investments Inc., 94 USPQ2d 1031 (TTAB
2010), the Board broadened the type of documents that could
be made of record by notice of reliance pursuant to
Opposition No. 91202473
4
Trademark Rule 2.122(e). Specifically, the Board held
that, if a document obtained from the internet identifies
its date of publication or date that it was accessed and
printed, and its source (e.g., the URL), it may be admitted
into evidence pursuant to a notice of reliance in the same
manner as a printed publication in general circulation in
accordance with Trademark Rule 2.122(e). Id. at 1039.
Thus, for those exhibits submitted by applicant that show a
URL and a print date on the bottom of the page, for
example, Exhibit C-5, we find these exhibits are acceptable
under Safer, and opposer’s objections to them are
overruled. However, many of the documents that applicant
has submitted, which it has described as screen shots, do
not have the date that they were printed on them. We note
that there is a picture of a calendar and a clock appearing
these exhibits (sometimes actually blocking the content of
the document, see, e.g., Exhibit C-1), but we cannot assume
that this picture accurately identifies the date the
document was printed. In fact, the picture indicates that
the information on it can be changed; each of the calendar
and clock pictures bears the statement “Change date and
time settings…” at the bottom of the picture. Safer
significantly expanded the types of documents that may be
submitted under a notice of reliance, noting that it is
Opposition No. 91202473
5
possible to make of record under a notice of reliance
certain documents obtained from the internet, such as
annual reports, that could not be made of record if they
were submitted in traditional paper form. See id. at 1039,
n. 18. As a result, we see no need to construe Safer even
more broadly, but think it appropriate to require strict
adherence to the requirements of Safer if a party wishes to
submit internet documents by notice of reliance. The
inclusion of a picture of a calendar and a clock does not
satisfy these requirements.3
Further, applicant has submitted exhibits that consist
of Google search summaries. Such exhibits are not
admissible by notice of reliance because they essentially
are links to website pages. See Edom Laboratories Inc. v.
Lichter, 102 USPQ2d 1546, 1550 (TTAB 2012). For similar
reasons, applicant’s submissions of pages of screenshots
from YouTube videos, which are in effect links to the
videos, are not acceptable for submission by notice of
reliance. We also agree with opposer that applicant cannot
in effect introduce a video, which cannot be made of record
by notice of reliance, by submitting scene-by-scene screen

3 We also point out that applicant has not provided any reason
that it could not have indicated in the usual way the date the
webpages were printed and, as discussed above, we also note that
the date was printed in the usual way in many of the printouts.

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Opposition No. 91202473
7
(unpleaded) registrations, No. 1534378 for PASSIONATA in
standard characters for brassieres, drawers, garters,
pants, sock suspenders, underclothing, underpants and
underwear6, and No. 3692666 for the same “P within a heart
design” that appears in opposer’s pleaded registration No.
3686165, claiming color as a feature of the mark, with the
letter P appearing in a rose color, and both the heart and
P shadowed with silver, for, inter alia, underwear and
lingerie and such clothing as shirts, sweaters, tank tops
and tee-shirts;7 and pages from five translation
dictionaries. Applicant’s acceptable submissions, filed
under notice of reliance, consist of opposer’s responses to
applicant’s requests for admission (Exhibit A); dictionary
definitions (Exhibit B and subparts); various website
printouts from both third-party and opposer’s websites,
specifically, Exhibit C-5, Exhibits D-1, D-2, D-3, Exhibits
E-1 through E-11, Exhibits G-1 and G-2, Exhibits H-7 and
H-8, Exhibits J-1, J-3, J-6, J-11, J-14, J-15, J-16, J-17
and J-22.
We also treat of record Exhibit F-23 to applicant’s
notice of reliance, a calendar for 2012, and Exhibit F-24,

6 Registration No. 1534378, issued April 11, 1989; Section 8
affidavit accepted; Section 15 affidavit received; renewed.
7 Registration No. 3692666, issued October 6, 2009. The
registration includes additional goods in Class 25, as well as
goods and services in classes 3, 14, 18, 24 and 35.
Opposition No. 91202473
8
the February page from that calendar. Although this
document does not meet the requirements for submission
under Safer, opposer has admitted that in marketing its
PASSIONATA goods it uses a 2012 calendar containing images
of Bar Rafaeli wearing items of lingerie from among the
goods opposer offers for sale in connection with its
PASSIONATA mark, and that this calendar contains, on the
February page, the image of Bar Rafaeli and the words
“Happy Sexy Valentine.” Admissions Nos. 44, 45, 46 and 78.
We treat these admissions as sufficient to authenticate
Exhibits F-23 and F-24.
Because we have not considered many of the exhibits
submitted by applicant, we find that the exhibits that are
of record are not, as opposer has objected, duplicative,
irrelevant and a needless presentation of cumulative
evidence.
We point out that the probative value of the exhibits
is a separate question from their admissibility. The
internet documents are evidence only of the fact that the
material has appeared on the internet; they are not
evidence of the truth of the statements made in the
printouts. Further, the internet printouts are not
evidence of the extent to which consumers in the United
States have been exposed to the internet material. For
Opposition No. 91202473
9
example, we note that Exhibit H-8 is in German, and that
Exhibit J-11 is an article published by a UK newspaper.8
Standing
Because opposer has made of record its registrations
for PASSIONATA and PASSION MAKER, opposer has demonstrated
that it has a real interest in this proceeding, and
therefore standing. Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842 (Fed. Cir. 2000); Lipton
Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213
USPQ 185 (CCPA 1982).
Priority
In view of opposer’s registrations, priority is not in
issue. King Candy Company v. Eunice King’s Kitchen, Inc.,
496 F.2d 1400, 182 USPQ 108 (CCPA 1974). Further, although
neither party has submitted evidence as to when it began
using its respective marks, each is entitled to rely on the
constructive use of the filing date of its application.
The filing date of the underlying applications for
opposer’s two registered marks is January 15, 2008, well
prior to the March 19, 2011 filing date of applicant’s
application.
Likelihood of Confusion

8 We also point out that even if all of applicant’s exhibits
were considered, it would not affect the outcome herein.

Opposition No. 91202473
10
This brings us to the substantive question, whether
applicant’s use of its mark PASSIONATE HEART for its
identified goods is likely to cause confusion with
opposer’s marks PASSIONATA and design and PASSION MAKER in
stylized form. 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).
Applicant has conceded that the second and third du
Pont factors favor opposer:
The Second du Pont factor is “t]he similarity or
dissimilarity of and nature of the goods or
services as described in an application or
registration or in connection with which a prior
mark is in use.” See In re du Pont de Nemours &
Co., supra. In this opposition, Opposer’s goods
described in its subject registrations are
identical in part to Applicant’s goods described
in Applicant’s application. That being so,
Applicant realizes that the Board must find that
Opposer’s goods and Applicant’s goods are legally
identical. Applicant makes no argument against
such a finding.

The third du Pont factor is “[t]he similarity or
dissimilarity of established, likely-to-continue
trade channels.” Ibid. In this opposition,
there are no restrictions with respect to
channels of trade in either Opposer’s subject
registrations or Applicant’s application. That
being so, Applicant realizes that the Board must
Opposition No. 91202473
11
find that Opposer’s goods and Applicant’s goods
would travel in all normal channels of trade and
be purchased by all normal purchasers of such
goods who would be exercising no more than a
normal standard of care when making their
purchase. Applicant makes no argument against
such a finding.

Brief, p. 14. We need add only our finding that the goods
are identical in part, and that applicant’s goods are
otherwise closely related to some of opposer’s identified
goods. Further, because the goods are identical in part,
they must be deemed to travel in the same channels of
trade. Therefore, the second and third du Pont factors
favor opposer. In addition, applicant has conceded that
the purchasers of the goods would exercise no more than a
normal standard of care. This concession goes to the
fourth du Pont factor, the conditions under which and
buyers to whom sales are made. Because of the nature of
the goods, particularly t-shirts, they must be considered
to be ordinary consumer items that can be purchased without
a great deal of care and, in fact, can be the subject of
impulse purchase. We find that this factor, too, favors
opposer.
We therefore turn to the first du Pont factor, the
similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression. This is the primary du Pont factor
Opposition No. 91202473
12
on which applicant relies in support of its position. We
confine our analysis to the similarity between opposer’s
pleaded PASSIONATA and design mark and applicant’s mark; as
applicant has pointed out, opposer has not even discussed
the similarity of its PASSION MAKER mark and applicant’s
mark in its brief. We also agree that opposer’s PASSIONATA
and design mark is more similar to applicant’s mark, such
that if we find likelihood of confusion based on this mark,
there would be no need for us to discuss the question of
likelihood of confusion with respect to the PASSION MAKER
mark, and if we find no likelihood of confusion with the
PASSIONATA and design mark, there would be no likelihood of
confusion with opposer’s PASSION MAKER mark.
We begin our analysis with a reiteration of certain
well-established principles of trademark law. First, when
marks would appear on 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). Second, in considering
the similarity or dissimilarity of the marks, “[t]he 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
Opposition No. 91202473
13
encounter the marks would be likely to assume a connection
between the parties. Coach Services Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012), quoting Leading Jewelers Guild Inc. v. LJOW
Holdings LLC, 82 USPQ2d 1901, 1905 (TTAB 2007). 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). Third, 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).
Opposer’s mark is PASSIONATA with a heart design. The
heart design appears in a much smaller size than the word
PASSIONATA, and above it and to the right, almost in the
manner of a footnote symbol. If a mark comprises both a
word and a design, then the word is normally accorded
greater weight because it would be used by purchasers to
request the goods or services. In re Appetito Provisions
Opposition No. 91202473
14
Co., 3 USPQ2d 1553, 1554 (TTAB 1987). See also, In re
Viterra, 671 F.3d 1358, 101 USPQ2d 1905, 1911 (Fed. Cir.
2012) (“the literal component of brand names likely will
appear alone when used in text and will be spoken when
requested by consumers”). Given the relatively small size
of the heart design, and the fact that PASSIONATA appears
as a word that can be pronounced, we find that PASSIONATA
is the dominant element in opposer’s mark, and therefore it
is entitled to greater weight in our likelihood of
confusion analysis.
However, the fact that we are giving little weight to
the heart design in opposer’s mark,9 such that the
commercial impression of the mark is the word PASSIONATA,
while applicant’s mark PASSIONATE HEART has the additional
word HEART, is not, in and of itself, sufficient to avoid a
finding of likelihood of confusion. PASSIONATA is
extremely close to PASSIONATE in appearance, differing by
only the final letter. Consumers, particularly when buying
an inexpensive item like a t-shirt, are not likely to even
notice this difference. Further, PASSIONATE, as the first
word of applicant’s mark, must be treated as a prominent

9 We acknowledge that opposer owns a registration for just this
heart design, but opposer has not claimed likelihood of confusion
with the mark in that registration, nor has opposer submitted
evidence of recognition of the design per se.

Opposition No. 91202473
15
feature of the mark. See Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689 (Fed. Cir. 2005) (VEUVE ROYALE for sparkling
wines found likely to cause confusion with VEUVE CLICQUOT
for champagne); 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).10
In terms of pronunciation, the marks are similar, in
that PASSIONATA and PASSIONATE sound very close. Again,
because PASSIONATE is the first word of applicant’s mark,
this similarity in sound in highlighted.11
We have an interesting situation when it comes to the
connotations of the marks. In its pleaded registration,
opposer stated that the translation of PASSIONATA is
“impassioned,” and in its unpleaded registration for
PASSIONATA in standard characters (No. 1534378), submitted
with its notice of reliance, it translated the word as
“passion.” However, opposer submitted with its notice of

10 We must also acknowledge that, to the extent that consumers
note the heart design in opposer’s mark, it would reinforce the
similarity with applicant’s mark.
11 We also note opposer’s contention that, if the heart design in
opposer’s mark were articulated as the word “heart,” the marks
would be even more similar in sound. However, in our view the
heart design is likely not to be articulated, and therefore we do
not base our finding that the marks are similar in pronunciation
on this point.

Opposition No. 91202473
16
reliance various translation dictionaries which show that
“passionata” has no meaning in French, Spanish, Italian or
German. We agree with opposer that most Americans will not
understand PASSIONATA as having a specific translation, but
will view the term as referring to the English word
“passionate” in some manner.
Applicant, after parsing the various elements of
opposer’s mark, and treating PASSIONATA as meaning only
“impassioned,” and the heart design as meaning love,
contends that the mark as a whole means “impassioned love.”
Further, because of the manner in which opposer has
advertised its lingerie, applicant claims that the
connotation of the mark changes from “impassioned love” to
“impassioned (sexual) love.” Brief, p. 30. On the other
hand, applicant argues that the term HEART in its mark,
appearing as the noun in a two-word phrase in which
PASSIONATE modifies HEART, should be understood as
representing the definition of heart of “spirit, courage,
or enthusiasm.” Therefore, as opposed to opposer’s mark
PASSIONATA, which applicant claims has the connotation of
“sexy and sensual,” applicant argues that its mark,
PASSIONATE HEART, has the connotation of “spiritual.”
Brief, p. 35.
Opposition No. 91202473
17
We are not persuaded by applicant’s argument.
Consumers are not likely to go through the rather
convoluted thought process that applicant has done in which
to arrive at different meanings for the parties’ marks,
particularly when the marks are being used for relatively
inexpensive like t-shirts, which may even be the subject of
impulse purchase. Further, whatever definition one would
ascribe to the meaning of PASSIONATE in the marks, both
marks convey similar connotations. Because hearts and love
have an inherent association, PASSIONATE HEART can have the
meaning of one who loves passionately. See definition of
“heart” as meaning “affection” and “lose one’s heart to” as
meaning “to fall in love with.” Dictionary.com,
applicant’s exhibit B-3. See also applicant’s response to
Request for Admission No. 17, in which applicant
acknowledges that the conventional symbolic meaning of a
heart design is “love.” Further, we see no reason why
consumers could not apply the adjective definition of
“passionate” as “easily aroused to or influenced by sexual
desire; ardently sensual”12 to the word PASSIONATE as used

12 Definition taken from Random House Dictionary © 2013, reported
in Dictionary.com. The Board may take judicial notice of
dictionary definitions, 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), including
definitions from references that are the electronic equivalent of
Opposition No. 91202473
18
in applicant’s mark, such that PASSIONATE HEART would
connote someone who has an ardently sensual heart (“center
of the total personality, especially with reference to
intuition, feeling, or emotion”). Dictionary.com,
applicant’s Exhibit B-3. Thus, if we accept applicant’s
characterization of the connotation of opposer’s mark,
applicant’s mark can be understood as having a similar
connotation.
We are also not convinced by applicant’s arguments or
evidence that the meaning that consumers will ascribe to
opposer’s mark PASSIONATA and design can only be that of
sexual love. Even if we accept applicant’s contention that
opposer uses sexy images and references to market its
lingerie, the goods that we have found to be identical or
closely related to applicant’s goods are t-shirts and
shirts and sweaters. There is no evidence whatsoever that
opposer uses sex or sexy images to market such goods, and
therefore applicant has not shown that the connotation of
opposer’s mark, in connection with these goods, has the
meaning of impassioned sexual love.
In other words, whether opposer’s mark is viewed as
having the meaning of impassioned sexual love or not,

a print reference work. See TBMP § 1208.04, and cases cited
therein at note. 5.
Opposition No. 91202473
19
applicant’s mark can have the same connotations when both
marks are used for identical or closely related goods. The
marks, therefore, convey similar commercial impressions.
Further, given that the goods are in part identical, and
given that, as noted previously, a lesser degree of
similarity of the marks is required to support of
conclusion of likely confusion, we find that the
similarities of the marks ourweigh the dissimilarities, and
that the du Pont factor of the similarity of the marks
favors opposer.
Applicant has also addressed the fifth du Pont factor,
although it characterizes it as “the strength of Opposer’s
marks and the strength of Applicant’s mark.”13 Brief, p.
44. First, applicant asserts that opposer’s PASSIONATA
mark “is highly descriptive and, therefore, weak.” Id.
Applicant cannot attack opposer’s mark in this manner in
the absence of a counterclaim. In any event, although
PASSIONATA, as used in connection with lingerie, may be
suggestive of the goods, i.e., suggest that they can arouse
passion, such a meaning is not applicable to opposer’s
t-shirts, shirts and sweaters, and therefore we must treat
the mark as arbitrary with respect to the goods which are

13 With respect to applicant’s arguments about its own mark being
arbitrary, the strength of an applicant’s mark is not a du Pont
factor.
Opposition No. 91202473
20
legally identical or closely related to the goods in
applicant’s application. We also point out that even
suggestive marks are entitled to protection. In this case,
there is no evidence of any third-party uses of marks
containing the element PASSION or PASSIONATE or anything
similar, and therefore we must, on this record, view
opposer’s mark as strong.
The parties have not submitted any evidence or
argument on any other du Pont factor. To the extent that
any other factors are relevant, we have treated them as
neutral.
In view of the fact that applicant’s goods are in part
legally identical and in part closely related to opposer’s
goods, that they travel in the same channels of trade, and
that they are purchased by members of the general public
without a great deal of care or deliberation, we find that
applicant’s mark is sufficiently similar to opposer’s mark
PASSIONATA and design to be likely to cause confusion.
Should there be any doubt on the issue of likelihood of
confusion, it is well-established that such doubt must be
resolved in favor of the registrant and prior user. See In
re Pneumatiques, Caoutchouc Manufacture et Plastiques
Kleber-Colombes, 487 F.2d 918, 179 USPQ 729, 729 (CCPA
1973) (“If there be doubt on the issue of likelihood of
Opposition No. 91202473
21
confusion, the familiar rule in trademark cases, which this
court has consistently applied since its creation in 1929,
is that it must be resolved against the newcomer or in
favor of the prior user or registrant); see also TBC Corp.
v. Holsa Inc., 126 F.3d 1470, 44 USPQ2d 1315, 1318 (Fed.
Cir. 1997); Miguel Torres S.a. v. Casa Vinicola Gerardo
Cesari S.R.L., 49 USPQ2d 2018 (TTAB 1998).
Decision: The opposition is sustained.