Dane J. Humble

Trademark Trial and Appeal Board

Nov 4, 2016

No. 86455663 (T.T.A.B. Nov. 4, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: November 4, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Dane J. Humble
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Serial No. 86455663
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Thomas D. Foster of TDFoster Intellectual Property Law,
for Dane J. Humble.
Sarah E. Kunkleman, Trademark Examining Attorney, Law Office 105,
Susan Hayash, Managing Attorney.
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Before Taylor, Wellington, and Lykos,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
Dane J. Humble (“Applicant”) seeks registration on the Principal Register of the
standard character mark PLEDGE ALLEGIANCE for, as amended, “Athletic
apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms
excluding all of the above goods for use in relation to motor sports” in International
Class 25.1

1 Application Serial No. 86455663 was filed on November 16, 2014, based upon Applicant’s
allegation of a bona fide intent to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b).
Serial No. 86455663
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The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicant’s mark, when used on the identified goods, so resembles the registered
typed mark, I PLEDGE ALLEGIANCE TO THE FLAG, for “T-shirts, sweatshirts,
jerseys, jackets and hats for the automobile racing and motor sports industries” that
it is likely to cause confusion.2
When the Examining Attorney made the refusal final, Applicant requested
reconsideration and simultaneously appealed to this Board. The Examining Attorney
denied the request for reconsideration and this appeal proceeded. Applicant and the
Examining Attorney have filed their briefs.
Likelihood of Confusion
Our likelihood of confusion is based on facts as they relate to the relevant factors
set out in 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 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. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA
1976).

2 Reg. No. 2223614 issued on February 16, 1999, renewed. Effective November 2, 2003,
Trademark Rule 2.52, 37 C.F.R. § 2.52, was amended to replace the term “typed” drawing
with “standard character” drawing. A mark depicted as a typed drawing is the legal
equivalent of a standard character mark. See In re Brack, 114 USPQ2d 1338, 1339 n.2 (TTAB
2015).
Serial No. 86455663
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Similarity of the Goods/ Channels of Trade/ Consumers
With regard to a comparison of the goods, as well as the established, likely-to-
continue channels of trade and classes of consumers, we must make our
determinations under these factors based on the goods as they are identified in the
cited registration and application. See 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, 1161 (Fed. Cir. 2014); Hewlett-
Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002);
and Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990).
At the outset, we note that the goods in the application and cited registration
identify some of the same articles of clothing, e.g., hats, jackets and T-shirts
(encompassed by Applicant’s “shirts”); however, they differ to the extent that
Registrant’s goods are described as being “for the automobile racing and motor sports
industries.” Applicant’s goods are prefaced as being “athletic apparel” and, in an
apparent effort to distinguish its goods from those of Registrant, has been amended
to specifically exclude “use in relation to motor sports.”3
Applicant does not argue in his brief that the involved goods are unrelated nor
does he attempt to explain how the language in the identifications expressly stating
the goods are (or are not) related to “motor sports” has any relevance in distinguishing

3 Applicant made this amendment with his September 3, 2015 response to the first Office
action, stating that “[i]n view [of the amendment], it is clear that confusion is not apt to occur
due to the differences in the goods, channels of trade and ultimate consumers.”
Serial No. 86455663
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the involved goods. The Examining Attorney, on the other hand, argues that “it is
common for the same entity to manufacturer various athletic clothing items not
related to motorsports and clothing for motorsports and market the goods under the
same brand” and “the respective goods commonly are sold in the same trade
channels.”4 In support, she introduced printouts from websites showing
manufacturers produce both athletic apparel items having a connection to
motorsports, like Registrant’s identified goods, as well as general athletic apparel,
like Applicant’s identified goods.5 Several of the printouts are from retail websites
offering both of these types of goods for sale. For example, the following are excerpts
of printouts from the Puma website (us.puma.com), showing Puma motorsports-
related shirts for sale:6

and Puma non-motorsports-related, athletic shirts:

4 11 TTABVUE 10.
5 Attached to Office actions issued on September 3 and 25, 2015, and on April 15, 2016.
6 Printouts attached to March 6, 2015 Office action.
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.
Additional evidence showing the same mark being used on motorsports-related
and non-motorsports-related, athletic apparel includes well-known brands such as
Adidas and Under Armour.7
An example of the involved goods being offered through the same trade channels
is the following excerpted printout from the Sears “Fan Shop” website
(www.sears.com), showing motorsport-related clothing in the site’s “NASCAR shop”
being and non-motorsport-related, athletic apparel in the site’s “NFL Shop” and
others (red arrows added for highlighting purposes):8

7 Attached to September 25, 2015 Office action.
8 Id.
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Additional evidence showing the same retail websites offering both motorsports-
related and non-motorsports-related, athletic apparel for sale includes printouts from
JH Design Group (www.jhdesign.com), Lids (www.lids.com), JC Penney
(www.jcpenney.com),9 Kohl’s (www.kohls.com) and Target (www.target.com).10
Based on the aforementioned evidence, we find there is a strong relationship
between the involved apparel items of both Applicant and Registrant despite the
differences based on whether the items are, or are not, motorsport-related. This
evidence shows that it is not uncommon for athletic apparel manufacturers to offer
for sale both Applicant’s and Registrant’s goods under the same mark. The evidence
shows that Applicant’s and Registrant’s goods, being the same types of apparel, will

9 Id.
10 The printouts from the Kohl’s and Target websites were attached to the Office action issued
on April 15, 2016.
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be encountered by the same class of purchasers, namely individuals interested in
athletic or sports-themed clothing, including motorsports-related apparel.. Because
the identifications in the Application and cited registration have no restrictions on
channels of trade, we must presume that the goods travel in all channels of trade
appropriate for such goods, which the record shows include online apparel retailers.
See In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)
(quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1268, 62 USPQ2d
1001, 1005 (Fed. Cir. 2002)).
In view of the above, these du Pont factors weigh in favor of a likelihood of
confusion.
Similarity of the Marks
We now consider whether Applicant’s proposed mark, PLEDGE ALLEGIANCE,
is similar to the registered mark, I PLEDGE ALLEGIANCE TO THE FLAG. We
compare 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, 1691 (Fed. Cir. 2005) (quoting du
Pont, 177 USPQ at 567). In making our determination we focus on the recollection of
the average purchaser, who normally retains a general rather than specific
impression of the trademarks. In re Cynosure, Inc., 90 USPQ2d 1644, 1645 (TTAB
2009); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
We find the marks are confusingly similar as a result of Applicant’s PLEDGE
ALLEGIANCE mark being an essential and major portion of the registered mark.
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The marks are visually and aurally similar given Applicant’s adoption of the same
wording that appears at the beginning of the registered mark after the short pronoun
“I.”
With respect to the marks’ overall commercial impressions and connotations, we
find they are extremely similar as well. Both marks have a strong patriotic tone.
Although the registered mark, I PLEDGE ALLEGIANCE TO THE FLAG, is in the
first person and has a preposition identifying “the flag” as the object of allegiance,
Applicant’s mark will likely be understood in the same, or at least very similar,
manner. In this regard, the Examining Attorney submitted Google search results for
the term “pledge allegiance,” and the initial ten results all contain links to pages
involving the “Pledge of Allegiance,” which begins with “I pledge allegiance to the flag
of the United States ….”11
Applicant, on the other hand, argues in his brief that the term “pledge allegiance”
could be interpreted as “mean[ing] to devote oneself to some environmental
movement (e.g. Greenpeace), a musical group (e.g. The Rolling Stones), a branch of
the military (e.g., the U.S. Marine Corp) or a popular presidential candidate (e.g.
Donald Trump).”12 We have also considered the possibility that given that the

11 Id., including printouts from website www.ushistory.org explaining the history of “The
Pledge of Allegiance.” The Board generally finds printouts of Google search results to have
little probative value in the absence of additional information regarding the referenced
website links. See, e.g., Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d
1458, 1461 n.10 (TTAB 2014) (listings have limited probative value because they do “not show
sufficient context in which the term is used on the listed web pages”). However, in this case,
the printouts are relevant because there is sufficient context and clearly indicate that the
“Pledge of Allegiance” is being referenced in each listing.
12 9 TTABVUE 6.
Serial No. 86455663
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registered mark is registered for use on apparel involving motorsports, it may be
understood as involved a pledge of allegiance to a starting or finish flag. Nevertheless,
while the wording “pledge allegiance” may involve an oath to a variety of persons or
objects and there are different flags, we find it much more probable that consumers,
already familiar with the well-known “The Pledge of Allegiance,” will immediately
and primarily understand both marks as suggestive of a patriotic oath to the U.S.
flag. As consequence, the commercial impressions and connotations created by the
marks are very similar.
Ultimately, we strongly disagree with Applicant’s assertion that “the first du Pont
factor, the differences between the marks, clearly outweighs any of the other
factors.”13 Rather, viewed and understood in their entireties, we find that Applicant’s
PLEDGE ALLEGIANCE mark is very similar to the registered I PLEDGE
ALLEGIANCE TO THE FLAG mark in terms of appearance, sound, connotation and
commercial impression. This du Pont factor therefore weighs in favor of finding a
likelihood of confusion.
Conclusion
Based on our findings that the goods are related and may be may be found in some
of the same trade channels, and that the marks are very similar, we find that
Applicant’s proposed mark PLEDGE ALLEGIANCE, if used on “athletic apparel,
namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms excluding
all of the above goods for use in relation to motor sports,” is likely to cause confusion

13 Id. at 8.
Serial No. 86455663
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with the registered mark I PLEDGE ALLEGIANCE TO THE FLAG on “T-shirts,
sweatshirts, jerseys, jackets and hats for the automobile racing and motor sports
industries.”
Decision: The refusal to register under Section 2(d) is affirmed.