David Copeland-Smith

Trademark Trial and Appeal Board

Mar 9, 2018

No. 85498107 (T.T.A.B. Mar. 9, 2018)

This Opinion is not a
Precedent of the TTAB

Hearing: February 28, 2018 Mailed: March 9, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re David Copeland-Smith
_____

Serial No. 85498107

_____

Jill M. Pietrini of Sheppard Mullin Richter & Hampton LLP,
for David Copeland-Smith.

Bridgett Smith, Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.1
_____

Before Zervas, Kuczma and Lynch,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
David Copeland-Smith (“Applicant”) seeks registration on the Principal Register
of the standard character mark BEAST MODE SOCCER for “T-shirts” in
International Class 25 and “sporting goods and equipment for soccer training,
namely, balls” in International Class 28.2 Applicant disclaimed the term SOCCER.

1 Mr. Brody argued for the USPTO in the oral hearing.
2 Application Serial No. 85498107, filed on Dec. 17, 2011, pursuant to Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b). On Nov. 1, 2017, the USPTO accepted Applicant’s
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The Examining Attorney refused registration of Applicant’s mark under
Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on the following two
registrations, both for the standard character mark BEAST MODE for International
Class 25 goods:
● Reg. No. 3650781 (“the ‘781 registration,” Section 8 and
15 affidavit accepted) for “T-shirts”; and
● Reg. No. 4254213 (“the ‘213 registration”) for “Men’s,
women’s and children’s clothing, namely, shirts,
sweatshirts; headwear, namely, hats, caps.”
Both registrations issued to Marshawn Lynch (“registrant”), who played football
professionally and is now retired.3
After the Examining Attorney made the refusal final, Applicant appealed to this
Board and requested reconsideration. The Examining Attorney denied the request
for reconsideration, the Board resumed the appeal, and both Applicant and the
Examining Attorney filed briefs. An oral hearing was held on February 28, 2018. We
affirm the refusal to register.
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

Amendment to Allege Use, claiming first use and first use in commerce on April 16, 2012 for
the goods in International Class 25, and first use and first use in commerce on June 6, 2012
for the goods in International Class 28.
3 Nov. 25, 2016 Resp., Exh. M., TSDR 464-76. There is no indication in the cited registrations
that the registered mark consists of or comprises the name identifying a particular living
individual. Trademark Act § 2(c), 15 U.S.C. § 1052(c).

Serial No. 85498107
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a likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973); see also Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); 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 and differences in the marks.”
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976); see also In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014). “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 Goods, Trade Channels and Purchasers
We turn first to the similarity between the respective goods, trade channels and
purchasers, and consider the goods as they are identified in the application and the
cited registrations. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d
1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014) (goods as identified in involved
application and cited registration compared); Octocom Sys., Inc. v. Houston
Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Neither
the application nor the cited registrations include any restrictions regarding channels
of trade; we must therefore presume that the recited goods are sold in the ordinary
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or normal trade channels for such goods. See Packard Press, Inc. v. Hewlett-Packard
Co., 227 F.3d 1352, 56 USPQ2d 1351, 1354 (Fed. Cir. 2000) (“When the registration
does not contain limitations describing a particular channel of trade or class of
customer, the goods or services are assumed to travel in all normal channels of
trade.”).
The International Class 25 goods are identical; both Applicant and registrant’s
‘781 registration goods are identified as “T-shirts,” and the “shirts” in registrant’s ‘213
registration encompass T-shirts. When the goods overlap or are identical and their
identifications have no restrictions as to nature, type, channels of trade, or classes of
purchasers -- as is the case here -- the identified goods are presumed to travel in the
same channels of trade to the same class of purchasers. In re Viterra Inc., 671 F.3d
1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); Hewlett-Packard Co. v. Packard Press,
Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002) (citing CBS Inc. v.
Morrow, 708 F.2d 1579, 218 USPQ 198 (Fed. Cir. 1983) (“absent restrictions in the
application and registration, goods and services are presumed to travel in the same
channels of trade to the same class of purchasers.”)). Of course, T-shirts are sold to
the general public.
With regard to Applicant’s International Class 28 goods, “sporting goods and
equipment for soccer training, namely, balls,” and registrant’s articles of clothing, we
note that the respective goods need not be identical or even competitive in order to
find that they are related for purposes of our likelihood of confusion analysis, but
need only be “related in some manner and/or if the circumstances surrounding their
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marketing [be] such that they could give rise to the mistaken belief that [the goods]
emanate from the same source.” Coach Servs., Inc. v. Triumph Learning LLC, 101
USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB
2007)).
In support of her contention that Applicant’s International Class 28 goods and
registrant’s goods are related, the Examining Attorney submitted third-party
registrations showing the same mark registered for both sporting equipment and
clothing. See, for example:
● Reg. No. 3548830 for the mark WILSON for various
clothing items including polo shirts and knit hats and
soccer balls.
● Reg. No. 3879555 for the mark BECOME
ENLIGHTENED for various clothing items including long
sleeved shirts, hats, and “balls for sports.”
● Reg. No. 4689418 for the mark HESED for various
clothing items including sweatshirts and sports shirts and
“sports balls.”
● Reg. No. 4689420 for a design mark for sports shirts and
polo shirts and “sport balls.”4
Although third-party registrations are not evidence that the marks shown therein
are in use or that the public is familiar with them, they nonetheless have some
probative value to the extent that they serve to suggest that the goods listed therein
are of a kind that may emanate from a single source under a single mark. In re
Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015); In re Davey Products Pty
Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009) (citing In re Albert Trostel & Sons Co., 29

4 May 19, 2016 Office Action, TSDR 4-20.
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USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d
1467, 1470 n.6 (TTAB 1988)).5 In addition, webpages from Applicant’s website depict
an UnderArmour brand ball and an UnderArmour brand T-Shirt.6 The evidence in
the record persuades us that Applicant’s International Class 28 goods are
commercially related to registrant’s International Class 25 goods. We also find that
both Applicant’s International Class 25 and registrant’s International Class 28 goods
are both offered to the general public; the nflshop.com, soccer.com and dicks.com
webpages demonstrate that such goods are offered through the same websites to such
purchasers.
Applicant argues that registrant’s identified goods are “marketed as apparel
associated with [r]egistrant and his nickname, as well as [r]egistrant’s college football
years at Cal Berkeley,” and Applicant’s goods have “never been associated with
[r]egistrant or football, and Applicant’s apparel products are marketed primarily to
Applicant’s customers for Applicant’s soccer coaching and training services.”7 These
arguments are not persuasive because there is no restriction in Applicant’s
identification of goods limiting the marketing of Applicant’s goods to customers of
Applicant’s soccer coaching and training services, and there is no restriction in
registrant’s identifications of goods limiting marketing as apparel associated with

5 The Examining Attorney submitted several webpages from third-party websites
(nflshop.com, soccer.com and dicks.com) to show that the same marks are used on sports
related clothing and sporting equipment. However, while this material shows websites
selling both types of goods, it does not demonstrate use of one mark on both clothing and
sports balls. See Jan. 23, 2017 Office Action, pp. 2-20.
6 Nov. 25, 2016 Resp., Exh. L, TSDR 429.
7 7 TTABVUE 18-19.
Serial No. 85498107
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registrant and his nickname, or registrant’s “football years at Cal Berkeley.” Rather,
as noted above, we consider the goods as they are identified in the application and
the cited registrations. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 110
USPQ2d at 1162 (appropriate to “focus on the application and registrations rather
than on real-world conditions, because ‘the question of registrability of an applicant’s
mark must be decided on the basis of the identification of goods set forth in the
application’”) (quoting Octocom Sys., Inc. v. Houston Computers Servs. Inc., 16
USPQ2d at 1787).
We therefore find the International Class 25 goods to be identical, the
International Class 25 and 28 goods to be related, and the purchasers and trade
channels for all of such goods to be at least overlapping.
B. The Marks
We compare the marks for similarities and dissimilarities in appearance, sound,
connotation and commercial impression. Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1692. 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 that confusion as to the source of the goods offered under the respective
marks is likely to result. Coach Servs., Inc. v. Triumph Learning LLC, 101 USPQ2d
at 1721. 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 Corp., 206 USPQ 255, 259
Serial No. 85498107
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(TTAB 1980). The focus is on the recollection of the average purchaser, who normally
retains a general rather than a specific impression of trademarks. In re Assoc. of the
United States Army, 85 USPQ2d 1264 (TTAB 2007); Sealed Air Corp. v. Scott Paper
Co., 190 USPQ 106 (TTAB 1975).
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, the analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entire
marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d
1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be
dissected and considered piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion.”). On the other hand, different features may be
analyzed to determine whether the marks are similar. Joel Gott Wines LLC v.
Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1430 (TTAB 2013) (citing Price Candy Co.
v. Gold Medal Candy Corp., 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955)). In fact,
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 Nat’l Data Corp., 224
USPQ at 751.
Finally, where, as in the present case, the marks are used in connection with in
part identical goods, the degree of similarity between the marks that is necessary to
support a finding of likely confusion declines, at least as to those goods. Bridgestone
Serial No. 85498107
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Ams. Tire Operations LLC v. Fed. Corp., 673 F.3d 1330, 102 USPQ2d 1061, 1064 (Fed.
Cir. 2012); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23
USPQ2d 1698 (Fed. Cir. 1992).
In this case, both marks are presented in standard character form, which allows
for the display of the respective marks in any typeface or stylization. Applicant has
merely added to registrant’s mark the generic or highly descriptive term SOCCER,
which Applicant has disclaimed.8 Because merely descriptive and generic terms are
accorded less weight in forming the commercial impression of a mark, see Motion
Picture Assoc. of America, Inc. v. Respect Sportswear, Inc., 83 USPQ2d 1555, 1561
(TTAB 2007) (RATED R SPORTSWEAR for clothing confusingly similar to RATED
R mark for film ratings), the term SOCCER does little to distinguish the marks. Also,
there is no question BEAST MODE is the portion of the mark most likely to be
remembered and used by consumers in calling for and referring to Applicant’s goods.
For this reason, we are not persuaded by Applicant’s arguments that the marks “are
visually dissimilar because Applicant’s mark contains the word SOCCER” and that
the marks are “phonetically dissimilar because the word SOCCER in Applicant’s
mark contains two additional syllables.”9 Due to the shared term BEAST MODE, we

8 Likelihood of confusion has been found where a term is added to a registered mark. In re
Mighty Leaf Tea, 94 USPQ2d at 1260 (finding ML in standard character form for use with
personal care products and skin care preparations similar to ML MARK LEES (stylized) for
skin care products ); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009)
(applicant’s mark VANTAGE TITAN for medical magnetic resonance imaging diagnostic
apparatus confusingly similar to TITAN for medical ultrasound diagnostic apparatus); In re
El Torito Rests., Inc., 9 USPQ2d 2002, 2004 (TTAB 1988) (applicant’s mark MACHO
COMBOS for food items confusingly similar to MACHO for restaurant entrees).
9 7 TTABVUE 16.
Serial No. 85498107
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find the marks to be similar in sound, meaning, appearance and commercial
impression.
Applicant argues that SOCCER in Applicant’s mark indicates that his goods are
directed to the game of soccer while BEAST MODE in the cited mark refers to
Marshawn Lynch’s personal nickname developed during his career as a professional
football player.”10 Applicant asserts:
Registrant’s mark contains absolutely no association with
soccer, because Registrant is not associated with soccer,
only football. It is extremely rare for high caliber athletes
to switch sports or become famous for playing multiple
sports. In other words, Babe Ruth is known as a baseball
player, Michael Jordan is known as a basketball player,
and Tiger Woods is known as a golfer. The word “soccer”
does not conjure any of these athletes to mind. In a similar
vein, Applicant’s mark BEAST MODE SOCCER does not
have any association with Registrant Marshawn Lynch.11
There are several problems with Applicant’s argument. First, it assumes that
Beast Mode is widely known as Mr. Lynch’s nickname. The Wikipedia pages, which
discuss Mr. Lynch’s life and accomplishments, do not contain sufficient facts for us to
determine the notoriety of this nickname. Second, the urbandictionary.com12
definitions in the record indicate that there are multiple meanings of “beast mode”
which are not specific to Mr. Lynch. See, for example, “a hype, energetic, outgoing,
wilding out state of mind,” identified as “TOP DEFINITION”; and “when in a state of

10 7 TTABVUE 17.
11 7 TTABVUE 17-18.
12 Nov. 25, 2016 Resp., Exh. A, TSDR 12-49.
Serial No. 85498107
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serious training of at a level of high effort.”13 Consumers will likely perceive the same
meanings from BEAST MODE for Applicant’s and registrant’s goods (which are not
restricted to football-themed clothing), and the record does not convince us that
consumers generally will perceive the term “beast mode” as registrant’s nickname.
Third, it ignores the fact that registrant’s identifications of goods are unrestricted
and hence encompass clothing sold through retail outlets and websites where soccer
equipment and soccer-related clothing are sold. Thus, registrant’s goods would not be
associated only with football, and the trade channels are not as distinct as Applicant
would have us believe. Fourth, registrant’s identification of goods in the ‘319
registration, which includes “shirts and sweatshirts,” encompasses soccer team
jerseys and soccer team sweatshirts, such as those worn by the players depicted in
Applicant’s webpages.14 Fifth, the Federal Circuit rejected a similar argument in In
re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017). There,
applicant included within its identification of goods a restriction that the goods will
be “all associated with William Adams, professionally known as ‘will.i.am.’” The
Federal Circuit affirmed the Board’s finding that the applicant’s and the cited
registrant’s goods and trade channels were identical despite the limitation in the
identification of goods, noting that the applicant’s “ownership of the class 25
registration and use of that mark in promoting and selling Adams's clothing line does
not compel a finding that Adams is known by I AM or i.am.” Id. at 1749. Thus, here

13 Nov. 25, 2016 Resp., Exh. A, TSDR 12.
14 Nov. 25, 2016 Resp., Exh. L, TSDR 442-43.
Serial No. 85498107
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too, registrant’s ownership of registrations and use of his mark does not compel a
finding that registrant is known as “Beast Mode.”
C. Third Party Uses and Registrations
Applicant argues that the cited mark is weak and entitled to a narrow scope of
protection because third parties have used and registered marks incorporating the
term BEAST MODE. This argument pertains to the sixth du Pont factor, the number
and nature of similar marks in use on similar goods.
Evidence of third-party use and registration is relevant to show that a term “may
have a normally understood and well-recognized descriptive or suggestive meaning,
leading to the conclusion that that [term] is relatively weak, and can show that
customers have been educated to distinguish between different marks on the basis of
minute distinctions.” Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC,
122 USPQ2d 1030, 1036 (TTAB 2016) (quotations omitted). The Federal Circuit has
instructed that evidence of extensive use and registration of a term by others as a
mark can be “‘powerful on its face,’ even where the specific extent and impact of the
usage has not been established.” Jack Wolfskin Ausrustung Fur Draussen GmbH v.
New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir.
2015), cert. denied, 136 S. Ct. 982 (Jan. 25, 2016) (quoting Juice Generation, Inc. v.
GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015)).15

15 But see Olde Tyme Foods Inc. v. Roundy's Inc., 961 F.2d 200, 22 USPQ2d 1542, 1545 (Fed.
Cir. 1992) (“As to strength of a mark, however, registration evidence may not be given any
weight.” citing AMF Inc. v. American Leisure Prods., Inc., 474 F.2d 1403, 177 USPQ 268, 269
(CCPA 1973) (“The existence of [third party] registrations is not evidence of what happens in
the market place or that customers are familiar with them. . . .”)) (emphasis in original).
Serial No. 85498107
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Most of Applicant’s evidence to demonstrate weakness is of very limited probative
value. With regard to the third-party applications, there is no evidence that any of
the applications ever registered, many of the applications indicate that they have
been abandoned, and an application is evidence only that the application was filed on
a certain date. In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016) (An
application is not evidence of use of the mark and has no probative value). In addition,
of the seven subsisting third-party registrations, none identify articles of clothing,
and others are, for example, for computer software, dietary and nutritional
supplements, beer, advertising and marketing consultancy, personal fitness training
services and consultancy, and entertainment in the nature of competitions in the field
of fitness, that is, goods and services unrelated to the goods at issue here. See In re
i.am.symbolic, 123 USPQ2d at 1751 (disregarding third-party registrations for goods
in other classes where the proffering party “has neither introduced evidence, nor
provided adequate explanation to support a determination that the existence of I AM
marks for goods in other classes, … support a finding that registrants’ marks are
weak with respect to the goods identified in their registrations”); In re Thor Tech Inc.,
90 USPQ2d 1634, 1639 (TTAB 2009) (“In this case, the third-party registrations are
of limited probative value because the goods identified in the registrations appear to
be in fields which are far removed from trailers and recreational vehicles,” citing Key
Chemicals, Inc. v. Kelite Chemicals Corp., 464 F.2d 1040, 175 USPQ 99, 101 (CCPA
1972)). Moreover, Applicant has not pointed to evidence showing that the third-party
registered marks are in use on a commercial scale. Absent evidence of actual use,
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third-party registrations generally have little probative value in assessing the market
strength of a mark because they are not evidence that the marks are in use on a
commercial scale or that the public has become familiar with them. Smith Bros. Mfg.
Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA 1973) (the
purchasing public is not aware of registrations reposing in the USPTO).
With regard to the Internet evidence submitted by Applicant, the foreign websites
(http://lazylemon.net (showing prices in euros), www.beastmodebrazil.com (showing
prices in Brazilian real), www.officialbmostore.co.uk, www.beastmode.be,
www.ebay.co.uk and beastmodesupplements.com.au), even if in the English
language, have no probative value as to consumer perception in the United States.
Other websites offering bags, training programs and nutritional supplements have
limited probative values regarding the strength of the mark for clothing items
inasmuch as they concern goods and services other than clothing. The roughly ten
U.S. websites offering clothing articles have relevance to demonstrate weakness of
BEAST MODE for registrant’s goods, although some have other wording in the marks
(e.g. USA and Crossfit). They do not, however, establish that the cited mark BEAST
MODE is so weak that confusion is not likely to result from the registration of the
very similar mark BEAST MODE SOCCER for identical or even related goods.
Applicant’s evidence of similar marks in use for similar goods does not appear to
approach the quantum of evidence of use in the Primrose, Jack Wolfskin, and Juice
Generation cases. We find that the evidence does not establish that customers “‘have
been educated to distinguish between different … marks on the basis of minute
Serial No. 85498107
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distinctions,’” Juice Generation, 115 USPQ2d at 1674 (quoting 2 J. THOMAS
MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:88 (4th ed.
2015)), particularly the single (possibly generic) word difference at issue here.
It has been stated many times that we must decide each case on its own facts. See
In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even
if some prior registrations had some characteristics similar to [an applicant’s]
application, the PTO’s allowance of such prior registrations does not bind the Board
or this court.”); In re Max Capital Group Ltd., 93 USPQ2d 1243, 1246 (TTAB 2010)
(noting that third-party registrations “cannot justify the registration of another
confusingly similar mark”) (citations omitted). Even were we to find that third-party
marks dilute and limit the scope of protection afforded to the cited registration, marks
considered “weak” are nonetheless entitled to protection from registration by a
subsequent user of a confusingly similar mark. See King Candy Co. v. Eunice King’s
Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974).
D. Concurrent Use/No Actual Confusion
Applicant argues that the marks have been in concurrent use for more than five
years and that Applicant is not aware of a single instance of actual confusion during
this time period.
The Federal Circuit in In re Majestic Distilling Co., 65 USPQ2d at 1205, addressed
the question of the weight to be given to an assertion of no actual confusion by an
applicant in an ex parte proceeding:
[W]e agree with the Board that Majestic’s uncorroborated
statements of no known instances of actual confusion are
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of little evidentiary value. See In re Bissett-Berman Corp.,
476 F.2d 640, 642, 177 USPQ 528, 529 (CCPA 1973)
(stating that self-serving testimony of appellant’s corporate
president’s unawareness of instances of actual confusion
was not conclusive that actual confusion did not exist or
that there was no likelihood of confusion). A showing of
actual confusion would of course be highly probative, if not
conclusive, of a high likelihood of confusion. The opposite
is not true, however. The lack of evidence of actual
confusion carries little weight, [citation omitted], especially
in an ex parte context.
Accordingly, while examples of actual confusion may point toward a finding of a
likelihood of confusion, an absence of such evidence is not as compelling in support of
a finding of no likelihood of confusion. Thus, we cannot conclude from the lack of
instances of actual confusion that confusion is not likely to occur.
E. Purchasing Conditions
With regard to purchaser care, Applicant argues:
Registrant’s customers are sophisticated consumers
seeking apparel associated with Registrant, who is a
football star. Registrant is well-known for his football
prowess. Registrant’s consumers are quite unlikely to
confuse Registrant’s mark with the mark BEAST MODE
SOCCER, because Registrant has never been involved in
soccer sports. These purchasing conditions weigh in favor
of a finding that there is no likelihood of confusion between
Applicant’s mark and the Cited Marks.
Applicant’s argument is not persuasive; again, we are bound by the parties’
respective identifications of goods. Octocom Sys., Inc. v. Houston Computers Servs.
Inc., 16 USPQ2d at 1787 (“[t]he authority is legion that the question of registrability
of an applicant’s mark must be decided on the basis of the identification of goods set
forth in the application regardless of what the record may reveal as to the particular
Serial No. 85498107
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nature of an applicant’s goods, the particular channels of trade or the class of
purchasers to which the sales of goods are directed.” [citations omitted]). For the
clothing goods at issue, including the identical T-shirts listed in both Applicant’s and
registrant’s identifications of goods, as well as soccer balls, we may assume that these
can be relatively low priced items, highly accessible to the average consumer and that
would not be purchased with a great deal of care or require purchaser sophistication,
which increases the likelihood of confusion.16 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, the risk of likelihood of confusion is increased
because purchasers of such products are held to a lesser standard of purchasing care”)
(citations omitted). See also Brown Shoe Co., Inc. v. Robbins, 90 USPQ2d 1752 (TTAB
2009) (clothing items would not be purchased with a great deal of care or require
purchaser sophistication). We deem this du Pont factor to favor finding a likelihood
of confusion.
F. Conclusion
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, and all relevant du Pont factors. The T-shirts at
issue here are identical, and move through the same trade channels to the same
classes of customers. Applicant’s soccer balls are commercially related to registrant’s
clothing items, and travel through the same channels of trade to the same consumers.

16 See Nov. 25, 2016 Resp., Exh. B, TSDR 57, depicting a T-shirt for $10.00.
Serial No. 85498107
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Applicant’s and registrant’s marks are similar and Applicant has not established any
significant weakness in registrant’s mark. The purchasing conditions favor a finding
of likelihood of confusion due to the low cost and nature of the goods. We therefore
find that Applicant’s mark BEAST MODE SOCCER for his T-shirts and soccer balls
is likely to cause confusion with registrant’s mark BEAST MODE for his T-shirts and
other clothing goods.
Decision: The refusal to register under Section 2(d) is affirmed.