Darryl McDaniels and Erik Blamoville

Trademark Trial and Appeal Board

Jul 10, 2018

No. 86283711 (T.T.A.B. Jul. 10, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: July 10, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re McDaniels and Blamoville
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Serial No. 86283711

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Phillip Thomas Horton, Esq. for Darryl McDaniels and Erik Blamoville.

Kaelie E. Kung, Trademark Examining Attorney, Law Office 103,
Stacy Wahlberg, Managing Attorney.
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Before Zervas, Wellington and Greenbaum,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
Darryl McDaniels and Erik Blamoville (“Applicants”) seek registration on the
Principal Register of the standard character mark CLICKS for “retail store services
featuring clothing and apparel.”1

1 Application Serial No. 86283711, filed on May 16, 2014 pursuant to Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), asserting a bona fide intention to use the mark in
commerce.
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The Examining Attorney issued a Final Office Action in which she refused
registration of Applicants’ mark under Trademark Act Section 2(d), 15 U.S.C.
§1052(d), based on a likelihood of confusion with the registered standard character
mark CLICKS (Registration No. 4832082) for goods including “gloves; hats; ponchos;
rain boots; raincoats; scarves; socks” in International Class 25.2
After the Examining Attorney issued a Final Office Action, Applicants appealed
to the Board. Applicants and the Examining Attorney filed briefs. We affirm the
refusal to register.
I. Preliminary Issue
Applicants submitted new evidence with their appeal brief. The Examining
Attorney’s objection to Applicants’ new evidence is well-taken as the evidence is
untimely under Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d). Accordingly, the
objection is sustained, and the new evidence submitted by Applicants for the first
time with their appeal brief has not been considered. We add, however, that even if
considered, the new evidence would not alter our decision herein.
I. Likelihood of Confusion
Our determination under Section 2(d) of the Trademark Act is based on an
analysis of the probative facts in evidence that are relevant to the factors bearing on
a likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973) (“du Pont”); see also Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005);

2 Registered October 13, 2015.
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In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In
considering the evidence of record on these factors, we keep in mind that “[t]he
fundamental inquiry mandated by Section 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods [or services] and differences
in the marks.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24, 29 (CCPA 1976). “Not all of the [du Pont] factors are relevant to every case,
and only factors of significance to the particular mark need be considered.” Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1719 (Fed.
Cir. 2012) (quoting In re Mighty Leaf Tea, 601. F.3d 1342, 94 USPQ2d 1257, 1259
(Fed. Cir 2010)).
A. The Marks
Applicants have conceded that the marks are identical in sound, look and
appearance,3 and we find the marks identical in all respects. Palm Bay Imps., Inc. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1692. The du Pont
factor regarding the similarities of the marks weighs heavily in favor of a finding of
likelihood of confusion.
B. The Goods and Services and Their Trade Channels and Purchasers
We must make our determinations with regard to the goods and services, channels
of trade and classes of consumers based on the goods and services as they are
identified in the application and registration. See In re Dixie Rests. Inc., 105 F.3d

3 Applicants’ brief at 8, 4 TTABVUE 9. Applicants do not comment on the commercial
impression of the marks in their brief.
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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); Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d
1783, 1787 (Fed. Cir. 1990).
It is well recognized that confusion may be likely to occur from the use of the same
or similar marks for goods, on the one hand, and for services involving those goods,
on the other. See, e.g., In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025
(Fed. Cir. 1988) (holding BIGG’S (stylized) for retail grocery and general merchandise
store services and BIGGS and design for furniture likely to cause confusion); In re
H.J. Seiler Co., 289 F.2d 674, 129 USPQ 347 (CCPA 1961) (holding SEILER’s for
catering services and SEILER’S for smoked and cured meats likely to cause
confusion). When the goods and services in question are well known or otherwise
generally recognized as having a common source of origin, the burden of establishing
relatedness is easier to satisfy. In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d
1082 (Fed. Cir. 2014). For example, relatedness would generally be recognized when
the services feature the sale of the goods in the identification, such as when the
services are “brewpubs” and the goods are “beer.” In re Coors Brewing Co., 343 F.3d
1340, 1347, 68 USPQ2d 1059, 1064 (Fed. Cir. 2003).
Registrant’s “gloves; hats; ponchos; rain boots; raincoats; scarves; socks” are
clearly the type of items that would be offered for sale in retail stores featuring
clothing and apparel, the services identified in the application. Moreover, the record
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establishes that clothing store services and clothing items can have a common source
of origin. The Examining Attorney submitted approximately ten use-based third-
party registrations featuring both a wide variety of clothing goods and the provision
of retail store services featuring clothing and apparel. See, e.g.:
• U.S. Registration No. 4281444 for the mark
STERLINGWEAR for clothing and accessories including
hats, gloves, muffs, shawls and wraps, scarves, and socks;
and outerwear including overcoats, rain coats and trench
coats in International Class 25 and “retail store services
and on-line retail store services featuring clothing and
accessories” in International Class 35;4
• U.S. Registration No. 4769364 for the mark THE
FISHER PROJECT for clothing including coats, overcoats,
rain coats, rainwear and tunics in International Class 25
and “retail apparel stores” in International Class 35;5 and
• U.S. Registration No. 4914503 for the mark VICTOR
GLEMAUD for clothing including caps, hats, scarves,
socks, headwear, beanies, gloves, mittens and ponchos in
International Class 25 and “online retail and wholesale
store services featuring apparel” in International Class
35.6
In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB 1993) (third-party
registrations may serve to suggest that the listed goods and/or services are of a type
which may emanate from a single source).
In addition, the record includes examples of clothing retailers offering clothing
under the same mark:
• www.columbia.com -- offering raincoats, rain jackets,
gloves, hats, socks, and scarves and providing online and

4 April 11, 2016 Office Action, TSDR 16-18.
5 April 11, 2016 Office Action, TSDR 22-24.
6 April 11, 2016 Office Action, TSDR 28-30.
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brick and mortar retail store services, both under the mark
“Columbia”;7
• www.talbots.com -- offering raincoats, gloves, hats, socks,
and scarves and providing online and brick & mortar retail
store services, both under the mark “Talbots”;8 and
• www.llbean.com -- offering raincoats, gloves, hats, rain
boots, rain shoes, socks, and scarves and online retail store
services, both under the mark “L.L. Bean.”9
As to the channels of trade and classes of consumers, we must presume that
registrant’s “gloves; hats; ponchos; rain boots; raincoats; scarves; socks” and
Applicants’ “retail store services featuring clothing and apparel” are marketed in all
normal trade channels for such goods/services and offered to all normal classes of
purchasers for such goods/services. See In re Anderson, 101 USPQ2d 1912, 1920
(TTAB 2012); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992); In re Elbaum,
211 USPQ 639, 640 (TTAB 1981). See also In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1908 (Fed. Cir. 2012). Given the relationship between retail stores
and clothing, Applicants’ services constitute a trade channel through which
registrant’s goods travel, and at least some of Applicants’ customers are part of the
general consuming public for registrant’s goods. Thus, the trade channels intersect
in retail stores, where both Applicants’ services and registrant’s goods are offered to
the same classes of customers.

7 April 11, 2016 Office Action, TSDR 40-48.
8 April 11, 2016 Office Action, TSDR 49-58.
9 April 11, 2016 Office Action, TSDR 59-69.
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Applicants argue that Applicants’ services and registrant’s goods “differ insofar as
Applicant’s [sic] services are used for consumers who want to shop in person and not
digitally”; and “none of Registrant’s items appear to be marketed anywhere online,
including its own website.”10 Regarding trade channels, Applicants argue that
“Applicant’s [sic] trademark reaches the end consumer by and through consumers
who want to walk into a store and shop in person. In contrast, the registered
trademark appears to reach its end consumers by and through consumers who want
to shop online and order online.”11 Applicant’s argument is not persuasive because we
consider the goods and services as identified in the application and registration, and
not based on actual use. See, e.g., In re Dixie Rests. Inc., 41 USPQ2d at 1534. There
is no limitation in the identifications of goods and services which restricts sales as
suggested by Applicants, and we do not read such limitations into the identifications
of goods and services. Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940
(Fed. Cir. 1983) (“There is no specific limitation and nothing in the inherent nature
of Squirtco’s mark or goods that restricts the usage of SQUIRT for balloons to
promotion of soft drinks. The Board, thus, improperly read limitations into the
registration.”).
Thus, based on the identifications themselves and the evidence, we find that
Applicants’ goods and registrant’s services, as identified in the respective application
and registration, can emanate from the same source and be offered through the same

10 Applicants’ brief at 11, 4 TTABVUE 12.
11 Id.
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channels of trade to the same classes of customers. In view thereof, these du Pont
factors favor a finding of likelihood of confusion.
C. Conditions of Purchase
Applicants – without citing to any evidence - argue that “consumers of
[registrant’s] goods are sophisticated insofar as consumers know the brands and
companies they are choosing to purchase.”12 There is nothing inherent in registrant’s
goods which would set the price point for any of such goods to a level that we can
assume that consumers of such goods would be particularly careful or sophisticated.
We must consider all potential customers in our analysis, including the less
sophisticated. In re Bercut-Vandervoort & Co., 229 USPQ 763, 765 (TTAB 1986)
(average ordinary wine consumer must be looked at in considering source confusion).
The evidence demonstrates that socks and gloves are offered for sale for as little as
$3.9613 and $16.95, respectively.14 Because of the low cost of certain goods identified
in registrant’s identification of goods and because such goods may be sold in retail
stores, we find that those goods are subject to impulse purchases and weigh the du
Pont factor regarding conditions of purchase in favor of finding a likelihood of
confusion. See Recot, Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed.
Cir. 2000) (“When products are relatively low-priced and subject to impulse buying,

12 Applicants’ brief at 12, 4 TTABVUE 13.
13 April 11, 2016 Office Action, TSDR 67.
14 April 11, 2016 Office Action, TSDR 62.
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the risk of likelihood of confusion is increased because purchasers of such products
are held to a lesser standard of purchasing care.”).
D. Conclusion
Upon consideration of all of the evidence in the record and the arguments of the
Examining Attorney and Applicants, including evidence and arguments not
specifically addressed in this decision, we conclude that confusion is likely between
Applicants’ mark for their services and registrant’s identical mark for its goods; the
marks are identical, the goods and services are related, the trade channels and
consumers overlap, and certain goods are subject to impulse purchases.
Decision: The refusal to register is affirmed.