Evolved Ingenuity, LLCDownload PDFTrademark Trial and Appeal BoardJun 25, 2015No. 86001484 (T.T.A.B. Jun. 25, 2015) Copy Citation This Opinion is not a Precedent of the TTAB Mailed: June 25, 2015 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Evolved Ingenuity, LLC _____ Serial No. 86001484 _____ Geoffrey A. Mantooth of Decker Jones, P.C., for Evolved Ingenuity, LLC. Loksye Lee Riso, Trademark Examining Attorney, Law Office 101, Ronald R. Sussman, Managing Attorney. _____ Before Bucher, Taylor, and Masiello, Administrative Trademark Judges. Opinion by Masiello, Administrative Trademark Judge: Evolved Ingenuity, LLC (“Applicant”) has applied for registration on the Principal Register of the mark ASSAULT (in standard characters) for “hunting blinds” in International Class 28.1 The Trademark Examining Attorney refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as used in connection with Applicant’s goods, so resembles the registered mark AUTUMN ASSAULT as to be likely to cause 1 Application Serial No. 86001484, filed July 3, 2013 under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). Serial No. 86001484 2 confusion, or to cause mistake, or to deceive. The cited mark is registered in standard character form for “Non-waterproof camouflage screens of fabric for hunting purposes” in International Class 28.2 When the refusal was made final, Applicant filed a notice of appeal and a request for reconsideration. The Examining Attorney denied the request for reconsideration and this appeal proceeded. The case is fully briefed. Our determination under Section 2(d) is based on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on the issue of likelihood of confusion as set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods at issue. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). In this case, Applicant and the Examining Attorney have also submitted arguments regarding the strength of the marks and relevant channels of trade. We have considered each of these issues and all other matters of which there is evidence of record. 1. The marks. We first consider the similarity or dissimilarity of the marks at issue in their entireties as to appearance, sound, connotation and commercial impression. See Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). While we consider each mark in its 2 Reg. No. 3768074 issued March 30, 2010. Serial No. 86001484 3 entirety, 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 that our ultimate conclusion rests upon a comparison of the marks in their entireties. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). The two marks are similar in appearance, sound and meaning to the extent that Applicant’s mark ASSAULT is included in its entirety in the cited registered mark. Applicant argues that the element AUTUMN in the registered mark distinguishes the two marks, pointing out that AUTUMN is the first word of Registrant’s mark and “dramatically alters ‘ASSAULT.’”3 Applicant also points out that Registrant, in prosecuting its application for registration of its mark, faced a refusal based upon another registered ASSAULT mark and argued that “AUTUMN is a strong mark and changes the commercial impression made by AUTUMN ASSAULT.”4 Applicant argues that Registrant “is estopped from now claiming otherwise.”5 With respect to the importance of the term AUTUMN, the Examining Attorney argues: “AUTUMN” is highly suggestive in nature. … As noted by Applicant, the term “AUTUMN” “indicates that the camouflage pattern is best used in the autumn to blend in with falling leaves.” … Consumers of hunting blinds will be accustomed to seeing and recognizing prefatory 3 Applicant’s brief at 5, 7 TTABVUE 6. 4 Id. at 4, 7 TTABVUE 5, quoting Registrant’s response to an office action. See Applicant’s request for reconsideration, 4 TTABVUE 26-29. 5 Applicant’s brief at 5, 7 TTABVUE 6. Serial No. 86001484 4 wording of this nature as conveying information on the ideal outdoor setting for the use of the goods.6 The record contains many examples of camouflage fabrics and hunting blinds designed to resemble elements of the natural environment such as leaves, grass, and trees. Some of them are described in the product literature by reference to this aspect of the product, e.g., “It blends in to most any outdoor setting from timber to wetlands”; “Mossy Oak Shadow Grass Blades [fabric] will look great in any grass or marsh setting”;7 “Works well in most wetland and timber situations”; “This material is perfect for any woodland setting …”;8 “This pattern is excellent for timber or buckbrush applications. The pattern consists of small twigs and leaves and is virtually invisible in the woods.”9 Trademarks for such goods include Mossy Oak, Realtree, True Timber,10 and RealGrass.11 In light of such evidence, we are persuaded that customers exposed to the two marks ASSAULT and AUTUMN ASSAULT would likely perceive the term AUTUMN to be at least highly suggestive of the camouflage pattern of the product, such that they might believe that AUTUMN ASSAULT is a variation or sub-brand of Applicant’s mark. We see little relevance in the fact that Registrant once argued that AUTUMN was sufficient to distinguish its mark from another ASSAULT trademark. 6 Examining Attorney’s brief, 9 TTABVUE 6-7 (citing Applicant’s response of April 16, 2014 at 1). 7 Office Action of May 7, 2014 at 17. 8 Id. at 19. 9 Id. at 20. 10 Id. at 22. 11 Id. at 27. Serial No. 86001484 5 Whatever estoppel may apply to Registrant in another context, the Board is not estopped from performing its own comparison of the marks. Cf. Interstate Brands Corp. v. Celestial Seasonings, Inc. 576 F.2d 926, 198 USPQ 151, 154 (CCPA 1978) (“Under no circumstances, may a party’s opinion, earlier or current, relieve the decision maker of the burden of reaching his own ultimate conclusion on the entire record.”). We note also that Registrant’s arguments were offered with respect to a third-party’s goods that were quite unlike those of Registrant.12 Overall, considering the commercial impressions created by the marks at issue in their entireties, we find that the du Pont factor of the similarity or dissimilarity of the marks favors a finding of likelihood of confusion. 2. Similar marks in use. Applicant argues that the cited registered mark should be entitled to only a narrow scope of protection because the designation ASSAULT is widely used by unrelated businesses in the field of hunting goods. The record includes evidence of the use of the following marks on relevant goods:13 ASSAULT camouflage fabric14 AERIAL ASSAULT clay target launcher15 12 Registrant’s arguments were intended to distinguish its mark from a mark used on “fabric with polytetrafluoroethylene laminate,” goods that, as identified, had no apparent application to the field of hunting. 13 As it happens, the listed marks, other than the last one, are registered; however, such registration neither increases nor detracts from the potential dilutive effect of the use of such marks. 14 Response of April 16, 2014 at 42-5. 15 Request for reconsideration of November 7, 2014, 4 TTABVUE 30-34. Serial No. 86001484 6 COUNTER ASSAULT bear spray16 ASSAULT SYSTEMS clothing and weapons-related goods17 ULTIMATE PREDATOR ASSAULT VEHICLE motor bike.18 The five marks noted above are for a disparate range of goods. Only the first one relates closely to the goods of Registrant. Even if we accept the contention that the goods associated with the above marks are related to the field of hunting or to the goods of Registrant and Applicant, we are not persuaded that they demonstrate that ASSAULT is a weak mark in the relevant field or should be given only a narrow scope of protection. Applicant has also submitted third-party registrations to show that other marks that include the element ASSAULT are registered for various goods, including archery bows; snowmobiles; doors, windows, tools and backpacks; bicycle parts; fishing apparel; motorcycle helmets; vehicle suspensions; and rock climbing ropes.19 Such third-party registrations have little relevance. They are not evidence that the registered marks have been used, let alone used so extensively that consumers have become sufficiently conditioned by their usage that they can distinguish between such marks on the bases of minute differences. See Olde Tyme Foods Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542, 1545 (Fed. Cir. 1992); Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA 1973); Lilly 16 Id., 4 TTABVUE 41-44. 17 Id., 4 TTABVUE at 46, 48. 18 Id., 4 TTABVUE at 60. 19 Response of April 16, 2014 at 35-60. Serial No. 86001484 7 Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d 324, 153 USPQ 406, 407 (CCPA 1967). Giving due consideration to this evidence and Applicant’s related arguments, we find the du Pont factor of the number and nature of similar marks in use on similar goods to be neutral. 3. The goods. We next consider the similarity or dissimilarity of the goods as identified in the application and the cited registration. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-1162 (Fed. Cir. 2014); Octocom Syst. Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). As the goods are not clearly identical, we consider whether they are related in some manner or whether the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that they emanate from the same source. Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012). Applicant’s goods are “hunting blinds,” and the record contains much evidence showing that “blinds” for hunting are structures, often printed with a camouflage pattern, within which hunters may hide themselves while hunting. Applicant confirms this understanding by describing its goods as “free standing structures,” with the added explanation, “Many hunting blinds are tent-like, allowing the hunter to remain inside, concealed from wildlife such as deer or turkey.”20 20 Applicant’s brief at 6, 7 TTABVUE 7. Serial No. 86001484 8 Registrant’s goods are “non-waterproof camouflage screens of fabric for hunting purposes.” The Examining Attorney argues that the goods at issue “have complementary uses and thus are purchased by the same purchasers for the same or related purposes ….”21 A dictionary definition attached to the Examining Attorney’s brief indicates that a “screen” is “something that shelters, protects or hides, as … c : something that covers or disguises the true nature (as of an activity or feeling) ….”22 Clearly the purpose of “camouflage” is to conceal or disguise and the logical purpose of a camouflage screen for hunting would be to conceal the hunter from his prey, a function that is highly similar to the purpose of a hunting blind as explained by Applicant. Although the record does not contain evidence of any particular product marketed as a “camouflage screen,” the Examining Attorney suggests that the following products, marketed as “blinds,”23 “appear to fit the description of camouflage screens ….”24 21 Examining Attorney’s brief, 9 TTABVUE 11. 22 Definition from , submitted with the Examining Attorney’s brief. We note Applicant’s objection to this evidence as untimely; however, the objection is overruled. Dictionary definitions are a type of evidence of which the Board can properly take judicial notice. Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). Here, where there is question as to the meaning of the wording of Registrant’s identification of goods, the objective definition of a dictionary can be helpful. 23 Office Action of May 7, 2014 at 8, 9. 24 Examining Attorney’s brief, 9 TTABVUE 10. Serial No. 86001484 9 We find the evidence of record sufficient to show that the goods at issue have highly similar purposes. The Examining Attorney has shown that Registrant’s website at one time offered a “hunting blind” in association with its mark AUTUMN ASSAULT, with a photograph of the product accompanied by the text, “Shown at left is the portable hunting blind in Autumn Assault camo.”25 This fact is evidence that the goods of Applicant and Registrant are types of goods that may emanate from a single business. The Examining Attorney has also shown that camouflage fabric, the stuff of which Registrant’s goods are made, may also be a component of a hunting blind. The Office Action of May 7, 2014 shows many examples of camouflage fabric promoted as suitable for use in making a hunting blind. See, e.g., pp. 17 (camouflage 25 Office Action of October 16, 2013 at 7. The website is located at . Both counsel appear to concede that this website relates to Registrant. The mark HIDE-N- CAMO was the subject of a cancelled registration in the name of Registrant. See Response of April 16, 2014 at 33. Applicant points out that the registration of the domain name expired on March 12, 2014. See id. at 27-29. The fact that Registrant might no longer offer hunting blinds, as Applicant suggests in its brief at 8, 7 TTABVUE 9, does not invalidate evidence of the fact that it once did. Serial No. 86001484 10 fabric “excellent for … boat blinds”); 18 (camouflage fabric “to create a wind break for your blind”); 19 (“This material is excellent for … boat blinds”); 22-23 (“camo materials” discussed as a component of custom hunting blinds); 27 (camouflage material described as “Blind Material”); 28 (camouflage fabric described as “Blind Fabric”). Applicant points out that Registrant’s goods are identified as “non-waterproof,” and argues that, because hunters need protection from rainy weather, “[i]t is unlikely that the screens of fabric of the Reference mark are used on hunting blinds due to their non-waterproof nature.” Applicant points out that its own hunting blinds “protect the occupant from wind and water.”26 On the other hand, Applicant admits, “[p]erhaps this is stating the obvious, but hunters buy camouflage goods that are both waterproof and non-waterproof.”27 The Examining Attorney, in response, points out that some hunting blinds, like the ones pictured above, have no overhead protection and accordingly would not be considered protection from rainy weather. The evidence indicates that the primary purpose of a hunting blind is concealment, not protection from rain. Similarly, the primary purpose of Registrant’s goods is concealment. The fact that Registrant’s goods are not waterproof does not, in our view, indicate that they are unrelated to hunting blinds. The evidence shows that the goods at issue have similar purposes and would be of use to the same purchasers under the same circumstances of use (i.e., hunting). They are similar in nature in that both may be made of the same substance, 26 Applicant’s brief at 6, 7 TTABVUE 7. 27 Id., 7 TTABVUE 8. Serial No. 86001484 11 namely, camouflage fabric. There is some evidence indicating that they are types of goods that may emanate from a single source. There is even the possibility that camouflage screens may actually be a type of hunting blind (although we find the evidence too thin to make such a finding). We find the evidence discussed above sufficient to demonstrate a commercial relationship between the goods of Applicant and Registrant, such that if such goods were offered under similar trademarks, customers would likely believe that they originate from the same source. Accordingly, the du Pont factor relating to the similarity or dissimilarity of the goods favors a finding of likelihood of confusion. 4. Trade channels. We see no substantial evidence of record from which we may draw a meaningful conclusion as to the specific trade channels through which the goods of Applicant and Registrant travel. Although the Google “shopping” search revealed information regarding hunting blinds and camouflage fabrics, the search appears to have aggregated offerings from many different retail sources; it is not representative of a typical trade channel for the goods, inasmuch it apparently allows shopping for goods of all imaginable types. Otherwise, the evidence merely shows that the goods at issue can be found online. Accordingly, we treat the du Pont factor of trade channels as neutral. Serial No. 86001484 12 5. Other issues. Applicant contends that “goods under [Registrant’s mark] are no longer available.”28 The Examining Attorney correctly characterizes this contention as an impermissible “collateral attack” that has no relevance in an ex parte proceeding.29 The refusal at issue is based on Applicant’s mark’s resemblance to “a mark registered in the Patent and Trademark Office.” 15 U.S.C. § 1052(d). Applicant cannot defeat the registration, whether on grounds of abandonment or any other grounds, in an ex parte proceeding in which Registrant is not a participant. 6. Conclusion. We have considered all of the arguments and evidence of record, including those not specifically discussed herein, and all relevant du Pont factors. We affirm the Examining Attorney’s refusal of registration on the ground that Applicant’s mark, as used in connection with Applicant’s goods, so closely resembles the cited registered mark as to be likely to cause confusion, mistake or deception as to the source of Applicant’s goods. Decision: The refusal to register is affirmed. 28 Applicant’s brief at 8, 7 TTABVUE 9. 29 Examining Attorney’s brief, 9 TTABVUE 13. Copy with citationCopy as parenthetical citation