EPP, Inc.

Trademark Trial and Appeal Board

Aug 7, 2000

No. 75235844 (T.T.A.B. Aug. 7, 2000)

Paper No. 10
RFC
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB 8/7/00
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re EPP, Inc.
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Serial No. 75/235,844
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Jim Zeeger for EPP, Inc.
Christine Baker, Trademark Examining Attorney, Law Office 106
(Mary Sparrow, Managing Attorney).
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Before Cissel, Hohein and Wendel, Administrative Trademark
Judges.
Opinion by Cissel, Administrative Trademark Judge:
On February 4, 1997, applicant applied to register the
mark shown below
Ser No. 75/235,844
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on the Principal Register for what were subsequently
identified by amendment as “spikeless golf cleats for golf
shoes,” in Class 25. The application was based on applicant’s
claim of use of the mark in interstate commerce in connection
with these products since January 28, 1997.
The Examining Attorney refused registration under Section
2(d) of the Lanham Act on the ground that applicant’s mark, as
applied to spikeless cleats for golf shoes, so resembles the
mark “GREENSKEEPER,” which is registered1 for “soles of golf
shoes and spikes for the same,” in Class 25, that confusion is
likely.
Applicant responded to the refusal to register with
argument that confusion is not likely. Applicant argued that
its mark conveys a different commercial impression because of
the design element in it, and the fact that its mark,
“GREEN KEEPERS” is plural, whereas “GREENSKEEPER” is singular.
Additionally, applicant argued that confusion is not likely
because its goods are different from the goods in the cited
registration. Applicant submitted a copy of a published
article discussing the fact that shoes with conventional golf
spikes have recently been banned from many golf courses in the

1 Reg. No. 864,920 issued on the Principal Register to Genesco, Inc.
on Feb. 18, 1969. Combined affidavit under Sections 8 and 15 of the
Act received an accepted; renewed. The registration claims use in
commerce since October 31, 1965.
Ser No. 75/235,844
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United States. Applicant contended that there could be no
likelihood of confusion between its mark and the cited
Ser No. 75/235,844
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registered mark because the registered mark is
used in connection with “spikes which are for the most part
banned or about to be banned,” whereas applicant’s mark is
used on spikeless golf shoe cleats, which are the acceptable
alternative to the banned spike cleats. Also attached to
applicant’s response was a copy of a published test wherein
applicant’s spikeless cleats were compared to other golf spike
alternatives. Applicant argued that this report demonstrated
how those who are knowledgeable in the field understand the
difference between spikes and spikeless cleats.
The Examining Attorney was not persuaded by applicant’s
response to the first Office Action, and in the second Office
Action, she made the refusal to register final.
Applicant timely filed a Notice of Appeal, and both
applicant and the Examining Attorney filed appeal briefs, but
applicant did not request an oral hearing before the Board.
Accordingly, we have resolved this appeal based on careful
consideration of the record and written arguments before us.
In In re duPont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563 (CCPA 1973), the predecessor of our primary reviewing
court listed the principal factors to be considered in
determining whether a likelihood of confusion exists. Chief
among these factors are the similarity of the marks as to
appearance, sound, meaning and commercial impression, and the
Ser No. 75/235,844
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commercial relationship between the goods or services in
question, including the channels of trade through which the
goods or services move and the level of sophistication of the
respective purchasers of them.
In the instant case, we find that confusion is likely.
Applicant’s mark is very similar to the registered mark, and
the goods set forth in the application are interchangeable
with the goods specified in the cited registration.
Specifically as to the marks, we find that applicant’s
mark is visually and phonetically similar to the cited
registered mark, and that they both create similar commercial
impressions. In the application as originally filed,
applicant characterized its mark as “GREEN KEEPERS + Design.”
This is an accurate reflection of the fact that the word
portion of the mark, “GREEN KEEPERS,” is the dominant portion
of the mark, the part even applicant uses to refer to its
mark. It is this part of the mark that would be used by
purchasers of applicant’s goods to call for them or to
recommend them to others. This dominant part of applicant’s
mark is very similar in sound, appearance and commercial
impression to the registered mark, “GREENSKEEPER.”
The goods specified in the registration are “soles of
golf shoes and spikes for the same.” The application states
applicant’s goods as “spikeless golf cleats for golf shoes.”
Ser No. 75/235,844
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These products are clearly related. As applicant has
indicated, spikeless cleats are alternatives to spikes for
golf shoes. Like spikes, spikeless cleats are attached to the
soles of golf shoes, so in that sense, the goods of applicant
are also complementary with the soles for golf shoes listed in
the registration.
Plainly, the ordinary consumers who own golf shoes and
purchase cleats for them are likely to assume that the use of
these similar marks on both spikes and spikeless cleats is an
indication that they emanate from a single source.
Accordingly, the refusal to register under Section 2(d)
of the Lanham Act is affirmed.
R. F. Cissel
G. D. Hohein
H. R. Wendel
Administrative Trademark Judges,
Trademark Trial & Appeal Board
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