Ezekiel Elliott

Trademark Trial and Appeal Board

Sep 26, 2018

No. 86717843 (T.T.A.B. Sep. 26, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 26, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Elliott
_____

Serial No. 86717843
_____

Frank Salzano of Salzano, Jackson & Lampert, LLP,
for Ezekiel Elliott.1
Diane Collopy, Trademark Examining Attorney, Law Office 107,
J. Leslie Bishop, Managing Attorney.
_____

Before Lykos, Larkin, and Coggins,
Administrative Trademark Judges.

Opinion by Coggins, Administrative Trademark Judge:
Ezekiel Elliott (“Applicant”) seeks registration on the Principal Register of the
mark ZEKE (in standard characters) for:
Athletic apparel, namely, shirts, pants, jackets, footwear,
hats and caps, athletic uniforms; athletic uniforms;
clothing for athletic use, namely, padded pants; clothing for
athletic use, namely, padded shirts; clothing for athletic
use, namely, padded shorts; clothing, namely, arm

1 Applicant appointed Mr. Salzano as his counsel for this application on April 23, 2018, after
the briefing of this appeal. Applicant’s immediately previous counsel during prosecution of
the application was Phillip Thomas Horton of the Law Office of Phillip Thomas Horton, who
filed Applicant’s appeal brief.
Serial No. 86717843
- 2 -
warmers; clothing, namely, athletic sleeves; clothing,
namely, base layers; clothing, namely, neck tubes; gloves
as clothing; headbands for clothing; hoods; infant and
toddler one piece clothing; jackets; jerseys; ties; triathlon
clothing, namely, triathlon tights, triathlon shorts,
triathlon singlets, triathlon shirts, triathlon suits;
wearable garments and clothing, namely, shirts; women’s
clothing, namely, shirts, dresses, skirts, blouses; wrist
bands; in International Class 25.2
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicant’s mark, as applied to the goods identified in the application, so resembles
the mark ZEKE’S SMOKEHOUSE, in typed form3 with SMOKEHOUSE disclaimed,
for “hats, caps, blouses, sweat shirts” in International Class 25, owned by one
registrant (the first registrant);4 and the marks ZEKE’S COFFEE, in standard
characters, and , both with COFFEE disclaimed, for “athletic apparel,
namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms” in

2 Application Serial No. 86717843 was filed on August 7, 2015, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide
intention to use the mark in commerce. The application contains the following statement:
“The name(s), portrait(s), and/or signature(s) shown in the mark identifies Ezekiel Elliott,
whose consent(s) to register is made of record.”

3 “Prior to November 2, 2003, ‘standard character’ drawings were known as ‘typed’ drawings.
. . . A typed mark is the legal equivalent of a standard character mark.” TRADEMARK MANUAL
OF EXAMINING PROCEDURE (“TMEP”) § 807.03(i) (Oct. 2017).
4 Registration No. 2942626, issued April 19, 2005; Section 8 declaration accepted; Section 15
declaration acknowledged; renewed. This registration also covers various foods in
International Classes 29 and 30 which are not at issue.
Serial No. 86717843
- 3 -
International Class 25, owned by a different registrant (the second registrant);5 as to
be likely to cause confusion, to cause mistake, or to deceive. When the refusal was
made final, Applicant appealed and requested reconsideration. After the Examining
Attorney denied the request for reconsideration, the appeal was resumed. We affirm
the refusal to register.
I. Evidentiary Issue
Before proceeding to the merits of the refusal, we address an evidentiary matter.
Applicant attached to his brief several items, none of which had been submitted
previously. The Examining Attorney objected to the new material. The evidentiary
record in an application should be complete prior to the filing of an ex parte appeal to
the Board. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d). The Examining Attorney’s
objection to evidence first submitted with the appeal brief is sustained. Id.; In re Fiat
Grp. Mktg. & Corp. Commc’ns S.p.A., 109 USPQ2d 1593, 1596 (TTAB 2014).
Accordingly, we give no further consideration to the evidence submitted for the first
time with Applicant’s brief, or any arguments related thereto.
II. Likelihood of Confusion
When the question is likelihood of confusion, we analyze the facts as they relate
to the relevant factors set out in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563, 567 (CCPA 1973), cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. __, 135 S.Ct. 1293, 113 USPQ2d 2045, 2049 (2015). See also In re Majestic

5 Registration Nos. 4635438 (standard characters) and 4635440 (stylized), issued November
11, 2014. Each registration also identifies coffee and coffee-based goods in International Class
30 which are not at issue.
Serial No. 86717843
- 4 -
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the relatedness of the goods or services. See Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). We discuss the
du Pont factors for which Applicant and the Examining Attorney have presented
evidence and arguments. “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 (Fed. Cir.
2010)).
A. Similarity or Dissimilarity of the Goods, Channels of Trade, and
Classes of Customers
We turn first to the goods, channels of trade, and classes of consumers. We must
make our determinations under these factors based on the goods as they are
identified in the application and cited registrations. See In re Dixie Rests. Inc., 105
F.3d 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,
1004 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Computs. Servs. Inc., 918 F.2d 937,
16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
The first registrant’s goods include hats, caps, and blouses. Applicant’s goods also
include hats and caps (as athletic apparel) and blouses (as women’s clothing). The
second registrant’s goods include “athletic apparel, namely, shirts, pants, jackets,
Serial No. 86717843
- 5 -
footwear, hats, caps, and athletic uniforms;” and Applicant’s goods also include
“athletic apparel, namely, shirts, pants, jackets, footwear, hats, caps, and athletic
uniforms.” In view thereof, Applicant’s goods are, at least in part,6 identical to the
goods of each registrant. Because the goods are identical in part, we must presume
that the channels of trade and classes of purchasers are the same as to those
particular goods. Cai v. Diamond Hong, Inc., __ F.3d __, 127 USPQ2d 1797, 1801
(Fed. Cir. 2018) (citing In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908
(Fed. Cir. 2012) (“[I]t is well established that, absent restrictions in the application
and registration, [identical] goods and services are presumed to travel in the same
channels of trade to the same class of purchasers.” (internal quotation marks and
citation omitted))); In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723
(CCPA 1968) (where there are legally identical goods, the channels of trade and
classes of purchasers are considered to be the same); United Glob. Media Grp., Inc. v.
Tseng, 112 USPQ2d 1039, 1049 (TTAB 2014).
Applicant’s arguments7 that his clothing is distinguishable because he is a
professional athlete and his clothes are designed for athletic performance, and that
the goods travel in different channels of trade, are without merit. The first
registrant’s identification of goods contains no limitations on the nature of the

6 We need not discuss or analyze the other goods in Applicant’s identification. In re
FabFitFun, Inc., 127 USPQ2d 1670, 1672 (TTAB 2018). A likelihood of confusion may be
found with respect to a particular class based on any item within the identification of goods
for that class. See Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ
986, 988 (CCPA 1981); In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB 2015), aff’d,
866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017).
7 Applicant’s Brief, pp. 11-15 (7 TTABVUE 12-16).
Serial No. 86717843
- 6 -
identified hats, caps, and blouses; therefore, Applicant’s particular hats and caps
identified as athletic apparel, and blouses identified as women’s clothing, are
subsumed under the first registrant’s more generally identified hats, caps, and
blouses. The second registrant’s “athletic apparel” goods are identical to Applicant’s
“athletic apparel” goods. Further, neither Applicant’s nor either of the registrants’
identifications of goods contain any limitations as to channels of trade or consumers.
“The 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 nature of an applicant’s
goods, the particular channels of trade or the class of purchasers to which the sales
of goods are directed.” Octocom Sys., Inc., 16 USPQ2d at 1787.
We find that the second and third du Pont factors regarding the relatedness of
goods, channels of trade, and classes of consumers weigh in favor of likelihood of
confusion.
B. The Number and Nature of Similar Marks
The sixth du Pont factor is the number and nature of similar marks in use for
similar goods or services. du Pont, 177 USPQ at 567. This factor addresses the
strength of a mark with respect to both its inherent strength, based on the nature of
the term itself, and its commercial strength, based on the marketplace recognition
value of the term as a mark. Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC,
110 USPQ2d 1458, 1476 (TTAB 2014) (citing In re Chippendales USA, Inc., 622 F.3d
1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both
Serial No. 86717843
- 7 -
by its conceptual strength (distinctiveness) and its marketplace strength (secondary
meaning).”)).
Applicant points to the cited registrations, noting that they are owned by different
registrants and arguing that such ownership indicates that “dilution of the terms
involved in the instant refusal [is] sufficient enough that [sic] fact favors a finding of
an absence of a likelihood of confusion under the relevant du Pont factors.”8 To the
extent that Applicant is arguing that if these three registrations owned by two
different entities can co-exist on the register, his applied-for mark should also be
registrable, we find the argument unpersuasive. While the cited registrations all
include the term ZEKE’S, the mark of the first registrant includes the word
SMOKEHOUSE but the marks of the second registrant include the word COFFEE.
The addition of different wording in the cited registrants’ marks diminishes their
similarity inter se. At any rate, while the Patent and Trademark Office strives for
consistency in examination, the Board is not bound by the prior decisions of
examining attorneys in allowing marks for registration. See, e.g., In re USA Warriors
Ice Hockey Program, Inc., 122 USPQ2d 1790, 1793 (TTAB 2017). It is well established
that each case must be decided 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 [applicant’s] application, the PTO’s allowance of such
prior registrations does not bind the Board or this court.”); In re Merrill Lynch, Pierce,
Fenner & Smith Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1142 (Fed. Cir. 1987).

8 Applicant’s Brief, p. 8 (7 TTABVUE 9).
Serial No. 86717843
- 8 -
“Evidence of third-party use of similar marks on similar goods is relevant to show
that a mark is relatively weak and entitled to only a narrow scope of protection.” Palm
Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
73 USPQ2d 1689, 1693 (Fed. Cir. 2005) (citation omitted). Internet printouts, such as
those offered by Applicant showing information about the two cited registrants only,9
“on their face, show that the public may have been exposed to those internet websites
and therefore may be aware of the advertisements contained therein.” Rocket
Trademarks Pty Ltd. v. Phard S.p.A., 98 USPQ2d 1066, 1072 (TTAB 2011). While the
Federal Circuit has held that “extensive evidence of third-party use and registrations
is ‘powerful on its face,’ even where the specific extent and impact of the usage has
not been established,” see Jack Wolfskin Ausrustung Fur Draussen GmbH & Co.
KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136
(Fed. Cir. 2015) (citing Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115
USPQ2d 1671, 1674 (Fed. Cir. 2015)), the record evidence here of diverse ownership
and use only by the cited registrants is extremely modest, and far less than that found
convincing in Jack Wolfskin and Juice Generation, wherein “a considerable number
of third parties’ use [of] similar marks was shown.” Id. Ultimately, the argument and
sparse evidence of weakness here are simply not as persuasive as that in either Juice
Generation or Jack Wolfskin.
Applicant also argues that the first registrant has but a single location in
California, the second registrant has just three locations (one each in Maryland,

9 Request for Reconsideration, 5 TTABVUE 28-33
Serial No. 86717843
- 9 -
Pennsylvania, and the District of Columbia), and neither registrant appears to sell
its goods on Amazon.10 In support of his theory, Applicant submitted what appear to
be Internet excerpts relating to “Zeke’s Smokehouse” and “Zeke’s Coffee” showing the
first registrant with an address in Montrose, California, and the second registrant
with locations in Baltimore, Maryland, and Pittsburgh, Pennsylvania.11 To the extent
that Applicant implies that the cited marks do not possess marketplace strength
because they may be used only in limited geographic areas, we note that the
registrations of the cited marks are not geographically limited. In the absence of
specific geographic or other limitations in the cited registrations, we must presume
that each registrant’s goods travel in all usual channels of trade and methods of
distribution throughout the United States. See Citigroup Inc. v. Capital City Bank
Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011) (citing Hewlett
Packard Co. v. Packard Press, Inc., 62 USPQ2d at 1005); Bd. of Regents, Univ. of Tex.
Sys. v. S. Ill. Miners, LLC, 110 USPQ2d 1182, 1193 (TTAB 2014). Moreover, there is
no evidence regarding the commercial strength of the cited marks, which is typical in
ex parte appeals in which the owner of a cited registration is not a party. See generally
In re Thomas, 79 USPQ2d 1021, 1027 n.11 (TTAB 2006).
As to conceptual strength, Applicant offers no comment regarding any inherent
weakness of the marks in his brief. There is no evidence of record that ZEKE or its
possessive ZEKE’S has any non-source identifying meaning with respect to clothing.

10 Applicant’s Brief, pp. 15-16 (7 TTABVUE 16-17).
11 Request for Reconsideration, 5 TTABVUE 28-33.
Serial No. 86717843
- 10 -
With respect to the words SMOKEHOUSE and COFFEE, those words have been
disclaimed by the respective registrants, and, in view of the nature of the other goods
(i.e., food and coffee, see footnotes 4 and 5, supra) identified in the cited registrations,
the words appear descriptive of those collateral goods.
Considering the record as a whole, we find that the ZEKE’S portion of the
registered marks has source-identifying significance and there is no evidence of other
third-party use or registration of similar marks for similar goods. Cf. Juice
Generation, Inc., 115 USPQ2d at 1674-75; Jack Wolfskin, 116 USPQ2d at 1135-36.
We therefore find that the registered marks ZEKE’S SMOKEHOUSE and ZEKE’S
COFFEE (in both forms) are not weak nor entitled only to a narrow scope of
protection.
In sum, we find that Applicant has not demonstrated any particular commercial
or inherent weakness of the term ZEKE or ZEKE’S or the mark ZEKE’S
SMOKEHOUSE or ZEKE’S COFFEE for apparel. In view thereof, both registrants’
marks are entitled at least to a normal scope of protection, and the sixth du Pont
factor regarding the number and nature of similar marks in use on similar goods is
therefore neutral in our analysis.
C. Similarity or Dissimilarity of the Marks
We now consider the first du Pont factor, the similarity or dissimilarity of the
marks when compared in their entireties in terms of appearance, sound, connotation,
and commercial impression, du Pont, 177 USPQ at 567, keeping in mind that “[w]here
… the goods at issue are identical, the degree of similarity necessary to support a
conclusion of likely confusion declines.” Diamond Hong, Inc., 127 USPQ2d at 1801
Serial No. 86717843
- 11 -
(citing In re Viterra Inc., 101 USPQ2d at 1908 (internal quotation marks and citation
omitted)). See also Bridgestone Ams. Tire Operations LLC v. Fed. Corp., 673 F.3d
1330, 102 USPQ2d 1061, 1064 (Fed. Cir. 2012); Citigroup Inc., 98 USPQ2d at 1260.
As to appearance, Applicant’s mark, the first registrant’s mark, and one of the
second registrant’s marks are all in standard characters and thus are not limited to
any particular depiction. The rights associated with a standard character mark reside
in the wording and not in any particular display. In re RSI Sys. LLC, 88 USPQ2d
1445, 1448 (TTAB 2008); In re Pollio Dairy Prods. Corp., 8 USPQ2d 2012, 2015 (TTAB
1988); TMEP § 1207.01(c)(iii). The marks may, therefore, appear in any typeface and
size including those that may increase the similarities. In re Aquitaine Wine USA,
LLC, 126 USPQ2d 1181, 1186 (TTAB 2018). The reality of this is revealed when
Applicant’s mark is compared to the second registrant’s other mark , in
which the term ZEKE’S is quite large and is clearly the dominant element.
Applicant’s mark ZEKE is similar in appearance to this mark.
Applicant’s deletion of the “’S” does little, if anything, to distinguish the terms
ZEKE’S and ZEKE, as the possessive form used by the registrants merely suggests
that the goods are possessed by or emanate from ZEKE. Cf. Sw. Mgmt., Inc. v.
Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015) (no meaningful distinction
arises from the possessive form of otherwise identical marks); In re Curtice-Burns,
Inc., 231 USPQ 990, 992 (TTAB 1986) (finding the marks McKENZIE’S and
McKENZIE “virtually identical in commercial impression”); Winn’s Stores, Inc. v. Hi-
Serial No. 86717843
- 12 -
Lo, Inc., 203 USPQ 140, 143 (TTAB 1979) (noting that “little if any trademark
significance can be attributed to the apostrophe and the letter ‘s’ in opposer’s mark”).
Turning to the connotations, commercial impressions, and meanings of the marks,
Applicant argues that his mark connotes an association with Applicant himself, a
professional athlete, but that the cited marks connote an association with brick-and-
mortar retail establishments that sell store-branded clothing.12 Applicant argues that
he achieved popularity as a college and professional football player, and that ZEKE
represents his “widely popular nickname.”13 As to meaning, there is evidence in the
record showing that Applicant is an NFL player,14 but there is no evidence showing
to whom ZEKE’S refers in any of the cited marks. What is also unknown is the degree
of notoriety of Applicant among consumers of the subject goods; that is, although
Applicant claims that he is “well known,” neither the Dallas Cowboys web excerpts
nor the Wikipedia page he submitted establish this purported fact. Thus, we are
uncertain how aware consumers would be of Applicant, or even that consumers would
be aware that ZEKE is a nickname for someone named “Ezekiel” or for Applicant in
particular.15 In this regard, and on this record, there is no evidence to show that
ZEKE is a nickname for “Ezekiel” in the United States. None of Applicant’s evidence,

12 Applicant’s Brief, pp. 8-10 (7 TTABVUE 9-11).
13 Id. at 16 (7 TTABVUE 17).
14 Request for Reconsideration, 5 TTABVUE 21-27;
15 Inasmuch as the Examining Attorney required and accepted Applicant’s statement that
the name shown in the mark identifies Applicant Ezekiel Elliott, we presume that the mark
ZEKE in the involved application was intended to refer to Applicant. This does not mean,
however, that Applicant’s mark would be so understood, or that all references to “Zeke”
identify Applicant.
Serial No. 86717843
- 13 -
including the Wikipedia entry for “Ezekiel Elliott,” states that Applicant uses or is
known by the nickname ZEKE.16 However, to the extent that consumers are aware of
such facts, all of the marks at issue convey the meaning of someone’s name. Similarly,
due to the purported meaning of ZEKE, the connotation of Applicant’s mark is similar
to the cited marks notwithstanding that the cited marks vary due to the second term
SMOKEHOUSE or COFFEE. The connotation remains a reference to a person named
ZEKE, as both ZEKE’S SMOKEHOUSE and ZEKE’S COFFEE presumably point to
a person named “Zeke” as well as to his smokehouse or his coffee.
The cited marks are comprised of the shared term ZEKE’S as their first element,
followed by a second, different word. As noted earlier, the addition of different
wording in the cited registrants’ marks diminishes their similarity to each other.
However, inasmuch as Applicant’s mark is comprised solely of the term ZEKE
without any additional wording, it moves closer in similarity to each of the cited
marks.
We note that ZEKE’S, the term that the cited marks share, is also the first word
in those marks. This lead term is likely to be impressed as the dominant portion of
the cited marks. Presto Prods., Inc. v. Nice-Pak Prods. Inc., 9 USPQ2d 1895, 1897
(TTAB 1988) (“. . . [it is] a matter of some importance since it is often the first part of
a mark which is most likely to be impressed upon the mind of a purchaser and

16 The only reference we can find in any of the evidence of record lies in the small print of a
single one of the more than fifty end notes on Applicant’s six-page Wikipedia entry. This
single reference states “Alton native Zeke Elliott drafted by Cowboys in first round” and
appears to reference an article in the April 28, 2016 ALTON TELEGRAPH. Request for
Reconsideration, 5 TTABVUE 26. At best, this small, singular note appears to indicate only
that Applicant may be known as “Zeke Elliott” in the town where he was born.
Serial No. 86717843
- 14 -
remembered.”). See also Palm Bay Imps., 73 USPQ2d at 1692 (“The presence of this
strong distinctive term as the first word in both parties’ marks renders the marks
similar, especially in light of the largely laudatory (and hence non-source identifying)
significance of ROYALE.”). ZEKE, as the non-possessive form of ZEKE’S, being the
only term comprising the applied-for mark, is similar in appearance, sound,
connotation, and commercial impression to the first term of the cited marks.
We acknowledge that the presence of SMOKEHOUSE and COFFEE as the
following terms in the respective registrants’ marks partially differentiates them
visually and aurally from the applied-for mark. These points of distinction, however,
do not outweigh the strong similarities in meaning, connotation, and overall
commercial impression engendered by the marks. Based upon the above analysis, we
find that the mark ZEKE is more similar than dissimilar to the marks ZEKE’S
SMOKEHOUSE, ZEKE’S COFFEE, and in terms of appearance,
sound, connotation and commercial impression. As a result, consumers encountering
ZEKE could mistakenly believe that it represents a variation on the registered marks
used to identify apparel emanating from a common source. This is particularly the
case because, as noted earlier, “[w]hen marks would appear on virtually identical
goods . . . the degree of similarity necessary to support a conclusion of likely confusion
declines.” Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23
USPQ2d 1698, 1700 (Fed. Cir. 1992). In view thereof, the first du Pont factor
regarding the similarity of the marks favors a finding of likelihood of confusion.
Serial No. 86717843
- 15 -
D. Fame of the Prior Marks
Turning to the fifth du Pont factor regarding the fame of the prior marks,
Applicant argues that the cited marks “do not possess any measurable amount of
fame with American consumers as a whole” compared to Applicant himself who he
alleges “has obtained extreme popularity.”17 The purported lack of fame of the two
registrants’ marks, as argued by Applicant, is of little consequence.18 i.am.symbolic,
116 USPQ2d at 1413. Because an examining attorney is not expected to submit
evidence regarding the fame of the cited marks, the fifth du Pont factor is usually
treated as neutral in ex parte proceedings. See TMEP § 1207.01(d)(ix). In view
thereof, we consider this factor neutral.
E. Conditions of Sale
We next consider to the fourth du Pont factor regarding the conditions under
which and buyers to whom sales are made, i.e., “impulse” versus careful,
sophisticated purchasing. du Pont, 177 USPQ at 567. Applicant argues that

17 Applicant’s Brief, p. 16 (7 TTABVUE 17).
18 Applicant’s fame or renown is another matter. To the extent that Applicant or his mark
ZEKE may be famous, such a finding would not support registration of his mark. While the
fame of either Applicant’s or one the cited registrants’ marks would increase the likelihood
of confusion by making it more likely that purchasers will remember the famous mark and
think of it when encountering similar goods sold under a similar mark, such likelihood of
confusion would be a reason to refuse a new registration, not grant one. See i.am.symbolic,
llc, 116 USPQ2d at 1413 n.7. To the extent that Applicant and his mark ZEKE are well-
known, such fact might support refusal of his application, because when confusion is likely,
it is the prior registrants which must prevail. Even if Applicant’s fame or renown eclipses the
renown of the prior registrants, it does not entitle him to usurp the rights that they have in
their marks. Id.
Serial No. 86717843
- 16 -
consumers will exercise care in the purchase of Applicant’s goods due to the alleged
notoriety of Applicant, the Dallas Cowboys, and the NFL.19
As to conditions of sale, there is nothing in the respective identifications of goods
to indicate a price point for the clothing. Thus, the clothing is presumed to include
items at all price points, including inexpensive clothing. See i.am.symbolic, 116
USPQ2d at 1413. We cannot assume, as Applicant implies, that these items are sold
to different classes of buyers in different marketing contexts. Rather, we must
assume that the types of buyers overlap to include both football fans as well as
ordinary bargain hunters. Ordinary consumers of hats, caps, blouses, and athletic
apparel are likely to exercise only ordinary care, and given the lack of price
restrictions in the identifications, may even buy inexpensive clothing items on
impulse. 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.”). Accordingly, the fourth du Pont
factor favors a finding of likelihood of confusion.
F. Actual Confusion and Concurrent Use
Although Applicant identified the seventh and eighth du Pont factors as relevant
to his application,20 he failed to otherwise discuss these elements. Nonetheless, we
observe that the subject application is based on intent to use and there is no evidence

19 Applicant’s Brief, p. 15 (7 TTABVUE 16).
20 Id. at 6 (7 TTABVUE 7).
Serial No. 86717843
- 17 -
of any overlap in use or opportunities in which confusion could occur. See
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1847 (Fed. Cir.
2000); Gillette Can. Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). See also
Nina Ricci S.A.R.L. v. E.T.F. Enters. Inc., 889 F.2d 1070, 12 USPQ2d 1901, 1903 (Fed.
Cir. 1989). Further, the absence of actual confusion is entitled to little weight,
especially in an ex parte context. See Majestic Distilling Co., 65 USPQ2d at 1205
(“uncorroborated statements of no known instances of actual confusion are of little
evidentiary value” and “[t]he lack of evidence of actual confusion carries little weight
. . . especially in an ex parte context.”) (internal citation omitted). Accordingly, the
nature and extent of any actual confusion, and length of time and conditions under
which there has been concurrent use without evidence of actual confusion, are neutral
factors.
G. Potential Confusion
Applicant also argues that “the extent of potential confusion is minimal if any
exists at all,”21 due to the popularity of Applicant himself, different channels of trade,
and presumed limited geographic retail locations of the registrants. These arguments
relate to evidence and factors previously discussed herein. We addressed the trade
channel argument above, explaining that legally identical goods are presumed to
travel in the same channels. See Cunningham v. Laser Golf Corp., 55 USPQ2d at
1847 (extent of potential confusion analysis supported by substantial evidence where
Board had earlier explained that identical goods were deemed to travel in same

21 Id. at 17 (7 TTABVUE 18).
Serial No. 86717843
- 18 -
channels of trade and to same purchasers). Further, Applicant is seeking a national
trademark registration and the two cited registered marks are not geographically
limited. In the absence of specific geographic or other limitations in Applicant’s
application and the cited registrations, we must presume that Applicant’s goods and
each Registrant’s goods will travel in all usual channels of trade and methods of
distribution throughout the United States for such goods. See Citigroup, 98 USPQ2d
at 1261 (citing Hewlett Packard Co. v. Packard Press, Inc., 62 USPQ2d at 1005); Bd.
of Regents, Univ. of Tex. Sys., 110 USPQ2d at 1193. Accordingly, the twelfth du Pont
factor is neutral.
H. Balancing the Factors
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, and all relevant du Pont factors. In view of the
identical goods, the absence of limitation to their channels of trade and classes of
customers, and the similarity of the marks at issue, we find that Applicant’s mark so
resembles each of the two registrants’ marks as to be likely to cause confusion,
mistake, or deception as to the source of Applicant’s goods.
III. Decision
The refusal to register Applicant’s mark ZEKE is affirmed.