Crocs, Inc.

Trademark Trial and Appeal Board

May 3, 2016

No. 86096875 (T.T.A.B. May. 3, 2016)

This Opinion is not a
Precedent of the TTAB

Oral Hearing: March 1, 2016 Mailed: May 3, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
_____

In re Crocs, Inc.
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Serial No. 86096875
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Natalie Hanlon Leh of Wilmer Cutler Pickering Hale and Dorr LLP,
For Crocs, Inc.
Brian Pino, Trademark Examining Attorney, Law Office 114,
K. Margaret Le, Managing Attorney.
_____

Before Wellington, Goodman and Lynch,
Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:
Crocs, Inc. (“Applicant”) seeks registration on the Principal Register of the mark
FIND YOUR FUN (in standard characters) for “On-line retail store services featuring
footwear, socks, apparel, hospital scrubs, hats and headwear, bags, jewelry, pencil
cases, phone and mp3 cases, shoe ornaments, sunglasses and eyewear” in
International Class 35.1

1 Application Serial No. was filed on 86096875, based upon Applicant’s allegation of a bona
fide intention to use the mark in commerce under Section 1(b) of the Trademark Act.
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Trademark Act Section 2(d), 15 U.S.C. §1052(d), on the ground that Applicant’s
mark, when used in connection with the identified services, is likely to cause
confusion with the mark FIND YOUR FUN! (in standard characters) for a wide range
of advertising, marketing and promotional services for others.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
I. Applicable Law
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 likelihood of
confusion. 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). In any likelihood of confusion analysis, two key considerations are
the similarities between the marks and the similarities between the goods and
services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24 (CCPA 1976). These factors, along with other relevant du Pont factors, are
discussed below. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78
USPQ2d 1944, 1947 (Fed. Cir. 2006) (“we need to consider only the [du Pont] factors
that are relevant and of record”). To the extent that any other du Pont factors for

2 Registration No. 3979401 issued on June 14, 2011. In addition to Class 35 services, the
mark is registered for Class 41 services, which the Examining Attorney has not cited as a bar
to registration.
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which no evidence or argument was presented may nonetheless be applicable, we
treat them as neutral.
II. Discussion
A. Comparison of the Marks
We first compare the marks “in their entireties as to appearance, sound,
connotation and commercial impression” to determine the similarity or dissimilarity
between them. Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177
USPQ at 567). “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, 668
F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). The focus is on the recollection
of the average purchaser, who normally retains a general rather than a specific
impression of trademarks. See In re Binion, 93 USPQ2d 1531, 1534 (TTAB 2009);
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
In this case, Applicant's mark FIND YOUR FUN and Registrant’s mark FIND
YOUR FUN! are nearly identical. They differ only in that Registrant’s mark includes
an exclamation point at the end. However, the addition of the exclamation point is
unlikely to provide any significant distinction; the identical literal portion of both
marks is likely to make far more of an impression in the mind of the potential
consumer. See In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085-86 (Fed.
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Cir. 2014) (TAKE 10! found similar to TAKETEN despite exclamation point); In re
Promo Ink, 78 USPQ2d 1301, 1305 (TTAB 2006) (noting in regard to the mark PARTY
AT A DISCOUNT! that “[t]his punctuation mark does not significantly change the
commercial impression of the mark”).
When we view the marks in their entireties, we find them to be virtually identical
in appearance, sound, connotation and commercial impression. Applicant does not
address this du Pont factor on appeal.3
B. Number and Nature of Similar Marks in Use on Similar Goods or
Services
Applicant argues that FIND YOUR FUN! is weak and/or diluted and entitled to a
narrow scope of protection.4 In this connection, Applicant submitted copies of pages
from five third-party websites showing use of FIND YOUR FUN:5
Find Your Fun (Little River Casino Resort, www.lrcr.com)
Find Your Fun (Bayside Fenwick Island, http://livebayside.com)
Park. Ride. Find your fun! Take Metro Transit to the State Fair. (T Metro
Transit, www.metrotransit.org)6

Find Your Fun Fitness (Mara Mt. Ashland Racing Association,
www.mtashlandracing.com)

Find Your Fun This Fall – (Carbon Chamber, Carbon County, PA,
www.carboncountychamber.org).

3 In its March 24, 2014 Response to Office action, Applicant states “the marks appear similar
in sound, appearance and meaning, and when considered in their entireties, arguably project
similar commercial impressions as well.”
4 Opening brief, 9 TTABVUE 10; Reply brief, 12 TTABVUE 5.
5 October 7, 2014 Response to Office Action at 3-9.
6 The webpage is marked “Expired” which suggests that the slogan is no longer in active
use.
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In addition to being limited in number, none of the third-party websites shows use
of FIND YOUR FUN in connection with advertising, promotional or marketing
services for others, i.e., any of the services identified in the cited registration. The
evidence therefore is not probative that FIND YOUR FUN is weak or entitled to a
limited scope of protection for Registrant’s identified advertising, marketing and
promotional services.7
C. Similarity of the Services and Channels of Trade
We next consider the services and channels of trade. We must make our
determinations under these factors based on the services as they are identified in the
registration and application. In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d
1531, 1534 (Fed. Cir. 1997). See also Stone Lion Capital Partners, LP v. Lion Capital
LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Hewlett-Packard Co.
v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002);
Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990).

7 The Federal Circuit’s decisions in Jack Wolfskin Ausrustung Fur Draussen GmbH & Co.
KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1135-36 (Fed.
Cir. 2015) and Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671,
1674 (Fed. Cir. 2015) do not compel a different result. Those decisions emphasized that a
“considerable” or “extensive” number of third-party registrations in the relevant industry
may well have, in the aggregate, evidentiary value. See In re Mr. Recipe, LLC, 118 USPQ2d
1084, 1089, 1089 n. 9 (TTAB 2016). There are no third-party registrations of record here,
and the website evidence of third-party use is not extensive nor is it in the same industry as
Registrant.
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Applicant argues that its services are different from and do not compete with
Registrant’s services in that Applicant does not “brand, promote, market or advertise
the services of others,” or “manufacture any goods [food and wine] referenced in the
Registrant’s … description of services,” and that the registration does not identify any
retail store services nor does it feature any of the goods that Applicant intends to sell
under the mark FIND YOUR FUN!, as identified in the application.8
We agree with Applicant that the services identified in the application and
registration are different. However, where, as in this case, Applicant’s mark is
virtually identical to Registrant’s mark, there need only be a viable relationship
between the services to find that there is a likelihood of confusion. See In re Thor
Tech., 90 USPQ2d 1634, 1636 (TTAB 2009) (citing In re Shell Oil Co., 992 F.2d 1204,
26 USPQ2d 1687, 1689 (Fed. Cir. 1993) (Contemporaneous use of identical or nearly
identical marks can lead to the assumption that there is a common source “even when
[the] goods or services are not competitive or intrinsically related.”). “[I]t is not
necessary that the [services] of the parties be similar or even competitive to support
a finding of likelihood of confusion” in order to find that they are related for purposes
of our likelihood of confusion analysis. Coach Servs., 101 USPQ2d at 1722 (citing 7-
Eleven v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). Further, “the greater the
degree of similarity in the marks, the lesser the degree of similarity that is required
of the products or services on which they are being used in order to support a holding
of likelihood confusion.” In re Concordia Int’l Forwarding Corp., 222 USPQ 352, 356

8 9 TTABVUE 6-7; 12 TTABVUE 3.
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(TTAB 1983). The issue is not whether consumers would confuse the services
themselves, but rather whether they would be confused as to the source of the
services. See In re RiseSmart Inc., 104 USPQ2d 1931, 1934 (TTAB 2012); In re Rexel,
223 USPQ 830, 831 (TTAB 1984). Further, in the context of likelihood of confusion, it
is sufficient if likelihood of confusion is found with respect to use of the mark on any
service that comes within the description of services in the application or registration.
Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986,
988 (CCPA 1981); In re Davey Products Pty Ltd., 92 USPQ2d 1198, 1202 (TTAB 2009).
Although at first impression the services do not appear especially related on their
face, the evidence of record shows that they are related. To show the commercial
relatedness of the services, the Examining Attorney submitted into the record copies
of fifty-one use-based, third-party registrations listing services of the types identified
in Applicant’s application and the cited registration i.e., advertising, marketing or
promotional services for others and online retail store services.9 Representative of
these registrations are, for example, Reg. No. 3545250 for the mark QUE-SITED
DESIGN KNOWLEDGE, Reg. No. 4064106 for BIG FLASH BARGAINS, Reg. No.
4176665 for LOVE YOUR BRAND, Reg. No. 4169357 for the mark BE PART OF THE
CAUSE, and Reg. No. 4146770 for the mark GIFTERS, all for online retail store
services featuring varied goods, as well as advertising, marketing and promotional
services for others.

9 February 12, 2014 Office Action and April 10, 2014 Office Action.
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Applicant criticizes some of the Examining Attorney’s third-party registration
evidence as containing a “wide array of services.”10 However, Applicant has not
specifically identified which third-party registrations it considers less than probative.
The majority of the third-party registrations provided by the Examining Attorney are
not for a wide variety of unrelated services, but rather, identify a wide variety of
advertising, promotional or marketing services for others, as well as online retail
store services, which are the services at issue here. Collectively, this third-party
registration evidence suggests that Applicant's services are of the type that may
emanate from the same sources as the services identified in the cited registration.
See In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). See also
In re Anderson, 101 USPQ2d 1912, 1919 (TTAB 2012); In re Albert Trostel & Sons
Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993).
The Examining Attorney also made of record screenshots from the websites of
seven online companies that provide advertising and promotional services for others
as well as retail store services under the same mark, including the following:11
www.nextdaypets.com which provides advertising plans and offers
“puppies for sale from trusted dog breeders.”

www.goodsmiths.com which offers a “[m]arketplace for makers, where
we support handmade” and has a webpage for requesting advertising
rates.

www.snagg.com which states “Advertise on Snagg.com Promote your
business by reaching more shoppers!” “Email us to learn about
advertising opportunities on Snaag.com” “Retailers … join our growing

10 9 TTABVUE 9.
11 4-6 TTABVUE. We find the website evidence for rakuten.com and bobstores.com as not
probative of the relatedness of the services.
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list of participating retailers” and “Simply shop any Snaag Store for your
item ... then snag it now from the online stores that have it …”

www.brewtees.com which states “Shop by Category: Mens Ladies
Breweries Originals Vintage Pubs Headware Sale Other Stuff” and “Too
busy brewing to worry about selling shirts? We’ll take care of everything,
we can design it, print it promote it and get it to your customer’s
doorstep ...”

www.amazon.com which states “Advertise your products”; “Sell on
Amazon.”

Applicant criticizes this website evidence, arguing it is of limited probative value
as to relatedness because the websites are “obscure” or, as to Amazon.com, a retailer
that offers a wide variety of goods and services.12 As to Applicant’s argument that the
website evidence is obscure, we see no reason to discount it absent evidence that the
websites are somehow not available to or known by U.S. consumers. As to the
evidence relating to the retailer Amazon, regardless of the breadth of goods it offers,
along with the other website evidence, taken as a whole, they support a finding that
online retailers also offer others the opportunity to advertise on the retail website.
Thus, the respective services are commercially related and they will be encountered
by the same consumers in the same channels of trade. See, e.g., In re Davey Prods.
Pty Ltd., 92 USPQ2d at 1202-04; In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266,
1272-73 (TTAB 2009).
Applicant further submits that based on Registrant’s specimen in the registration
file, as well as a printout from Registrant’s webpage, “it is clear that Registrant is
primarily a third party promoter of local events, exhibits, restaurants and sporting

12 9 TTABVUE 9.
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competitions” and that based on this evidence, the parties’ services are not related.13
As previously stated, the question of likelihood of confusion must be determined
based on the services as they are identified in the involved application and cited
registration, rather than what the evidence shows the services to be. In re Dixie
Restaurants, 41 USPQ2d at 1534.
Considering the channels of trade, because the services are related and the
identifications of services in the application and registration contain no limitations,
it is presumed that the services identified therein move in all channels of trade
normal for those services, and that they are available to all classes of purchasers.
Stone Lion, 110 USPQ2d at 1161. See also Coach Servs., 101 USPQ2d at 1723 (absent
limitation “goods are presumed to travel in all normal channels … for the relevant
goods.”). Applicant contends that the evidence submitted by the Examining Attorney
is insufficient to establish the services are marketed to the same consumers.
However, as the record reflects in this case, online marketplaces offer small
businesses a means for selling their goods at these marketplaces and offer advertising
of those goods. For example, nextdaypets.com offers advertising for dog breeders and
offers puppies for sale from those dog breeders, goodsmiths.com offers makers of
handmade goods advertising services and the ability to set up an online store on the
goodsmiths.com website to sell the goods, snaag.com allows businesses to be a
participating retailer as well as advertise on their website, and brewtees.com offers
breweries an opportunity to sell their merchandise as well as to promote the

13 9 TTABVUE 7.
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merchandise on the brewtees.com website. As neither the application nor registration
are restricted as to channels of trade or classes of purchasers, and given the evidence
of third party commercial websites that offer the types of services identified in the
application and registration, we find the channels of trade and classes of purchasers
to be the same or similar. See Anderson, 101 USPQ2d at 1920. Applicant contends
that the evidence submitted by the Examining Attorney ignores “the actual
marketplace realities present in this case.”14 Again, we may not resort to extrinsic
evidence to restrict the scope of the services in the cited registration, and cannot
consider Applicant’s extrinsic evidence regarding Registrant's actual use of its mark.
See generally, In re Dixie Restaurants, 41 USPQ2d 1534; Octocom Sys., Inc. 16
USPQ2d at 1787; see e.g., In re C.H. Hanson Co., 116 USPQ2d 1351 (TTAB 2015).
Based upon the evidence of record, we find that consumers would believe the
services identified in the application and registration are commercially related, that
they may emanate from a common source, and that they move in the same channels
of trade to the same classes of consumers.
D. Any other established fact probative of the effect of use
Reiterating its arguments in connection with similarity or dissimilarity of the
services and channels of trade, Applicant argues, under the miscellaneous thirteenth
du Pont factor, 177 USPQ at 567, that due to a “unique set of facts” Registrant’s actual
use “can and should be considered.”15 However, Applicant has not identified what

14 12 TTABVUE 4.
15 12 TTABVUE 4.
Serial No. 86096875
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circumstances of this case are unique or unusual, and we see no need to resort to
extrinsic evidence to discern the nature of Registrant’s services as they are
sufficiently clear. Cf. In re Trackmobile Inc., 15 USPQ2d 1152, 1154 (TTAB 1990)
(description of goods unclear and extrinsic evidence used to show meaning in the
trade).
E. Conclusion
We have carefully considered all evidence of record and Applicant’s arguments,
even if not specifically discussed herein, as they pertain to the relevant du Pont
factors but we are not persuaded thereby. To the extent that any doubts might exist
as to the correctness of this conclusion, we resolve such doubts, as we must, in favor
of Registrant. We find that Applicant’s mark FIND YOUR FUN, used in connection
with the services identified in the application, so closely resembles Registrant’s mark
FIND YOUR FUN!, used in connection with the services identified in the registration,
as to be likely to cause confusion, mistake, or deception as to the source of Applicant’s
services.
Decision: The refusal to register Applicant’s mark FIND YOUR FUN under
Section 2(d) is affirmed.