Elegant Headwear Co., Inc.

Trademark Trial and Appeal Board

Jan 17, 2006

No. 76529918 (T.T.A.B. Jan. 17, 2006)

Mailed: 1/17/2006

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Elegant Headwear Co., Inc.
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Serial No. 76529918
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Myron Amer for Elegant Headwear Co., Inc.

Melissa Vallillo, Trademark Examining Attorney, Law Office
113 (Odette Bonnet, Managing Attorney).
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Before Quinn, Hairston and Holtzman, Administrative
Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:

An application was filed by Elegant Headwear Co., Inc.
to register the mark MEGA-LOFT for “hats.”1
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant’s mark, when applied to applicant’s goods, so
resembles the previously registered mark MEGALOFT for

1 Application Serial No. 76529918, filed June 19, 2003, based on
an allegation of a bona fide intention to use the mark in
commerce.
THIS DECISION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser No. 76529918
2
“insulating fabric for clothing”2 as to be likely to cause
confusion.
When the refusal to register was made final, applicant
appealed. Applicant and the examining attorney filed
briefs.3 An oral hearing was not requested.
The examining attorney maintains that the marks are
essentially identical and that the goods are related. In
support of the refusal, the examining attorney submitted an
Internet web page from an on-line retailer offering
insulated hats for sale, and pointing out that the hats
bear the mark of the manufacturer as well as a mark
indicating the source of the insulation fabric; and third-
party registrations showing that hats and other clothing
items, as well as insulation fabric, may be produced by the
same entity.
Applicant argues that the involved goods are different
because the goods are classified in different International
Classes, and that the third-party registrations relied upon

2 Registration No. 2522548, issued December 25, 2001.
3 During examination, the examining attorney inquired as to
whether the mark had any significance. It was not until the
reply brief that applicant indicated it “does not know or believe
that MEGA-LOFT has any significance in the relevant trade, any
geographical significance or any meaning in a foreign language.”
Although it would have been preferable, of course, for applicant
to timely respond to the inquiry, we find that applicant has
satisfactorily complied with the inquiry.
Ser No. 76529918
3
by the examining attorney do not support the refusal.
Applicant’s briefs make no mention of the marks.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also: In re Majestic
Distilling Company, 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/or
services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). See also: In
re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531
(Fed. Cir. 1997).
Applicant’s mark MEGA-LOFT and registrant’s mark
MEGALOFT are virtually identical in appearance, differing
only in the addition of a nondistinctive hyphen in the
middle of applicant’s mark. This is not a significant
difference. Seaguard Corp. v. Seaward International, Inc.,
223 USPQ 48 (TTAB 1984). The marks are identical in sound
and meaning, and engender virtually identical overall
commercial impressions. Average consumers, who normally
retain a general rather than a specific impression of
Ser No. 76529918
4
trademarks, hardly can be expected to remember the
extremely minor difference between the marks. Sealed Air
Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975). Even
if they remembered that registrant’s mark did not include a
hyphen, it is unlikely that consumers would rely on the
absence or the presence of a hyphen to distinguish the
marks. This virtual identity between the marks weighs
heavily in favor of a finding of likelihood of confusion.
With respect to the goods, where virtually identical
marks are involved, as is the case here, the degree of
similarity between applicant’s and registrant’s goods that
is required to support a finding of likelihood of confusion
declines. In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1688-89 (Fed. Cir. 1993); and In re Opus One Inc., 60
USPQ2d 1812 (TTAB 2001).
It is not necessary that the respective goods be
similar or competitive, or even that they move in the same
channels of trade to support a holding of likelihood of
confusion. It is sufficient that the respective goods are
related in some manner, and/or that the conditions and
activities surrounding the marketing of the goods are such
that they would or could be encountered by the same persons
under circumstances that could, because of the similarity
of the marks, give rise to the mistaken belief that they
Ser No. 76529918
5
originate from the same producer. In re International
Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978).
In comparing applicant’s “hats” to registrant’s
“insulating fabric for clothing,” we note, at the outset,
the Board has found in the past that confusion may result
from the contemporaneous use of the same or similar marks
on fabrics for clothing and on clothing items. See Warnaco
Inc. v. Adventure Knits, Inc., 210 USPQ 307, 315 (TTAB
1981) and cases cited thereat.
In the present case, the examining attorney submitted
third-party registrations of three entities showing that
each entity adopted the same mark for insulating fabric and
clothing items. (See, e.g., GORE-TEX for “fabric for the
manufacture of clothing” and “headwear”). Third-party
registrations that individually cover different items and
that are based on use in commerce serve to suggest that the
listed goods are of a type that may emanate from a single
source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783
(TTAB 1993).
In addition, the examining attorney relied upon an
Internet web page of an on-line retailer (www.tracker-
outdoors.com) showing listings for insulated hats. The web
page highlights hats insulated with GORE-TEX®, including
“RedHead Gore-Tex Woodsman Insulated Hat.” Thus, the
Ser No. 76529918
6
examining attorney’s assessment that “insulated hats may
bear the mark of the manufacturer as well as a mark
indicating the source of the insulating fabrics from which
the goods are made” is a reasonable one.
In sum, we find that the examining attorney’s evidence
shows that the goods are commercially related. The
relatedness of the goods weighs in favor of finding a
likelihood of confusion.
We recognize that insulating fabric most likely will
be sold in wholesale and distribution trade channels to hat
manufacturers, while hats will be sold through retail
outlets to the general public. Nonetheless, as shown by
the examining attorney’s evidence, the ultimate consumer
may well encounter both marks identifying the insulating
fabric and the hat, respectively.
Applicant’s attempt to differentiate the goods based
on the classification system is ill-founded. The
classification of goods and services has no bearing on the
question of likelihood of confusion. Jean Patou Inc. v.
Theon Inc., 9 F.3d 971, 29 USPQ2d 1771 (Fed. Cir. 1993);
and National Football League v. Jasper Alliance Corp., 16
USPQ 1212, 1216 n.5 (TTAB 1990).
A final point hardly deserves mention. In the first
Office action, the examining attorney, in addition to
Ser No. 76529918
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citing the involved registration, mistakenly indicated that
a search of Office records revealed no similar registered
marks which would bar registration under Section 2(d).
Applicant somehow construes this inconsistency as showing
the error of the final refusal. Suffice it to say,
applicant’s argument is not well taken.
We conclude that purchasers familiar with registrant’s
insulating fabric for clothing sold under its mark MEGALOFT
would be likely to believe, upon encountering applicant’s
mark MEGA-LOFT for hats, that the goods originate with or
are somehow associated with or sponsored by the same
entity.
Decision: The refusal to register is affirmed.