Cheryl Lynn Ingberg

Trademark Trial and Appeal Board

Jan 31, 2011

No. 77663302 (T.T.A.B. Jan. 31, 2011)

Mailed: January 31, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Ingberg
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Serial No. 77663302
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Cheryl Lynn Ingberg, in pro per.

Brenan D. McCauley, Trademark Examining Attorney, Law Office 114
(K. Margaret Le, Managing Attorney).
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Before Holtzman, Taylor, and Ritchie, Administrative Trademark
Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Ms. Cheryl Lynn Ingberg (“applicant”) filed an application
to register the mark shown below for goods identified as
“clothing for men, women, juniors, children and infants namely
sweatshirts, t-shirts, hats, caps, visors, scarves, bandannas,
dresses, skirts, jackets, underclothes, sleepwear, slippers and
sportswear namely shirts, pants, shorts, jogging shorts,
sweatpants, socks, swimwear, sarongs, beach cover-ups, flip
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77663302
2
flops and sandals1:

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 THE LOVED DOG,2 in typed drawing
format, for “clothing for men, women and children, namely, t-
shirts, sweatshirts, tank tops, shorts, caps, hats and unitards
for infants,” 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

1 Serial No. 77663302 in International Class 25, filed February 4,
2009, pursuant to Section 1(b) of the Trademark Act, 15 U.S.C.
§1051(b), alleging a bona fide intent to use in commerce, and with the
following description of the mark: “The mark consists of the word
LUVDOG, the letter O is represented by a paw print with a heart
inside.”
2 Registration No. 2960552, issued June 5, 2005 in International Class
25, based on first use and first use in commerce in all classes on
February 24, 2005.
Serial No. 77663302
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 items in the application are identical-in-part to those
in the cited registration. The identical items include
“sweatshirts,” “t-shirts,” “hats,” “caps,” and “shorts,” which
both the application and the cited registration identify as
being directed to “men, women, and children.”

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.
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,
Serial No. 77663302
4
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, to the extent that
applicant's clothing is intended for “men, women, juniors,
children and infants,” registrant's clothing is similarly
intended for ”men, women and children.” Furthermore, there is
nothing that prevents the registrant from selling its
“sweatshirts,” “t-shirts,” “hats,” “caps,” and “shorts,” and
other clothing items (for “men, women, and children”) in the
same stores, and indeed on the same shelves, as applicant’s.
This is particularly true where, as here, the goods are in-part
identical. Accordingly, we find that these du Pont factors
weigh heavily in favor of finding a likelihood of 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
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
Serial No. 77663302
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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 of three words
in typed format, THE LOVED DOG. Since the first word is merely
an article, the dominant portion is clearly LOVED DOG. In re
National Data Corp., 224 USPQ 749, 751 (Fed. Cir. 1985)
(“[T]here 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
consideration of the marks in their entireties.”). Applicant’s
mark is as follows:
Serial No. 77663302
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Applicant has offered the description of her mark as “The mark
consists of the word LUVDOG, the letter O is represented by a
paw print with a heart inside.” Although applicant’s mark does
consist of a design element (to wit the heart/paw print
replacing the letter “o”), we find it to be clearly viewed as
the word “LUVDOG.” In short, although applicant’s mark consists
of a design as well as a literal element, it is the words which
will be used by consumers to call for or refer to the goods.
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). Accordingly, we find that the marks are similar in both
appearance and sound, with LUVDOG sharing almost the exact two
words that dominate THE LOVED DOG. We further find that the
connotation and commercial impression of applicant’s mark are
similar to that of the mark in the cited registration, being
either a loved dog, or one who loves dogs.
Finally, applicant argues that the cited registration is
weak. In support of this argument, applicant cites a few third-
party applications that contain the terms “LOVE” and “DOG,” or
near derivatives thereof, as evidence that consumers will
distinguish its mark from that in the cited registration.
Third-party registrations may be used to show that a term has
been commonly registered for its suggestive meaning. However,
Serial No. 77663302
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here all applicant has submitted are a few notices of allowance,
which do not show whether actual registration certificates were
issued. See TBMP § 1208.02 (2nd ed. 2004) (“Third-party
applications, as opposed to registrations, have no probative
value other than as evidence that the applications were filed.”)
Moreover, even weak marks are entitled to protection against
registration of a very similar mark for in-part identical goods.
See Giant Food Inc. v. Roos and Mastacco, Inc., 218 USPQ 521
(TTAB 1982). To the extent that applicant is arguing that she
is entitled to a registration based on those notices of
allowance, we note that every case is determined on its own
merits, and we cannot grant a registration simply because other
notices of allowance may have been granted for marks with
similar wording. In re Nett Designs Inc., 236 F.3d 1339 57
USPQ2d 1564, 1566 (TTAB 2001).
In sum, we find this du Pont factor to also favor finding a
likelihood of 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 in-part
identical goods, the same or similar channels of trade, and
similar marks with similar connotations, there is a likelihood
of confusion between applicant’s mark for the goods for which it
Serial No. 77663302
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seeks registration and the registered mark THE LOVED DOG for the
items identified therein.
Decision: The refusal to register is affirmed.