God is good LLC

Trademark Trial and Appeal Board

Nov 4, 2016

No. 86344160 (T.T.A.B. Nov. 4, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: November 4, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re God is good LLC
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Serial No. 86344160

_____

William L. Felts, CEO,
for God is good LLC.

Monica L. Beggs, Trademark Examining Attorney, Law Office 105,
Susan Hayash, Managing Attorney.1
_____

Before Quinn, Zervas and Gorowitz,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
God is good LLC (“Applicant”) seeks registration on the Principal Register of the
mark

1 Another Examining Attorney was responsible for this case prior to briefing.
Serial No. 86344160
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(GOD IS GOOD LLC and design) for the following International Class 25 goods:
Baseball caps and hats; Caps; Caps with visors; Collared
shirts; Graphic T-shirts; Hats; Head sweatbands; Hooded
sweat shirts; Hooded sweatshirts; Shirts; Shirts and short-
sleeved shirts; Small hats; Sweat bands; Sweat jackets;
Sweat pants; Sweat suits; Sweatshirts; Sweatsuits [sic]; T-
shirts; Women’s clothing, namely, shirts.”2
The Examining Attorney refused registration of Applicant’s mark under
Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on Registration No. 36029013
for the mark for goods including “Clothing, namely,
skirts, dresses, shirts, T-shirts, jackets, coats, 3/4 rain coats, belts, scarves, hats, caps
and rain hats; footwear, namely, shoes, boots, sandals” in International Class 25.
After the Examining Attorney issued a Final Office Action, Applicant appealed
the refusal to register and filed a request for reconsideration. The Examining

2 Application Serial No. 86344160, filed July 22, 2014, pursuant to Trademark Act § 1(b), 15
U.S.C. § 1051(b), claiming an intent to use the mark in commerce. Applicant entered a
disclaimer of the term “llc.”
The mark is described as follows:
The mark consists of the stylized lettering “God is good llc” with
two circles below the letters “O” in God and a circle below the “o”
portion of the “g” and the hook at the bottom of the “g” and two
circles below each of the letters “o” in good with the letters llc
following the “d” in good.
3 Registered April 7, 2009; Section 8 and 15 affidavits accepted and acknowledged.
Serial No. 86344160
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Attorney denied Applicant’s request for reconsideration. Applicant then filed a
request for remand to the Examining Attorney, which the Board granted. The
Examining Attorney was not persuaded by Applicant’s arguments and evidence
accompanying the request for remand and denied the request. The Board thereafter
resumed proceedings and both Applicant and the Examining Attorney filed briefs.
We affirm the refusal to register.
Evidentiary Issues
The Examining Attorney objects to Applicant’s submission of a webpage with its
brief and a reference in its brief to several of Applicant’s registrations for the first
time during the prosecution of the application. The objection is well-taken because
the record in an application should be complete prior to the filing of an appeal, 37
C.F.R. §2.142(d); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
(“TBMP”) §§ 1203.02(e), 1207.01 (2016). Further, the Board generally does not take
judicial notice of registrations. In re Ruffin Gaming LLC, 66 USPQ2d 1924, 1925 n.3
(TTAB 2002); TBMP §§1208.02, 1208.04. We therefore give no further consideration
to the webpage and the registrations referred to in Applicant’s brief for the first time.4
In addition, the Examining Attorney objected to Applicant’s reliance in its brief
on a third-party registration. It appears that the Examining Attorney is referring to
Applicant’s reliance on the registered mark GOD IS GOOD … 4U (identified by

4 The webpage submitted with Applicant’s brief differs slightly from the webpage submitted
with Applicant’s communication of March 11, 2016. It is clearly not the same submission, but
is very similar. We consider the March 11, 2016 submission but not the submission with
Applicant’s brief.
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Applicant as application serial no. 77308351). Applicant referred to this mark in it
December 29, 2015 submission to the Office, which the Examining Attorney discussed
in the January 5, 2015 Office Action and the December 10, 2014 Office Action. The
Examining Attorney, however, did not advise Applicant on the proper way to make
the registration of record in either Office action. We therefore consider the
registration, but only to the extent that Applicant has described the registration. See
TBMP § 1208.02 (“if the examining attorney discusses the registrations in an Office
action or brief, without objecting to them, the registrations will be treated as
stipulated into the record. … However, the Board will not consider more than the
information provided by the applicant. Thus, if the applicant has provided only a list
of registration numbers and/or marks, the list will have very limited probative
value.”).
Likelihood of confusion
Our determination under Trademark Act Section 2(d) is based on an analysis of
the probative facts in evidence that are relevant to the factors bearing on 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 Imp., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); In re Dixie Rests.
Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). 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
Serial No. 86344160
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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).
With regard 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 cited registration and in the application. See In re Dixie Restaurants
Inc., 41 USPQ2d at 1534. 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 (Fed. Cir. 2002); Octocom
Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990).
Here, certain goods in the application and those in the cited registration are
identical (i.e., shirts, T-shirts, hats and caps), or legally identical because they
encompass one another (i.e., Applicant’s “collared shirts” and “graphic T-shirts” fall
within the scope of registrant’s “shirts” and “T-shirts”). The Examining Attorney has
also established that other goods of Applicant and registrant are commercially related
through the submission of Internet evidence demonstrating that certain goods (e.g.,
jackets and sweat pants) are offered for sale under the same mark in the same
locations.5
When an applicant’s goods are identical to the registrant’s, we must presume that
the channels of trade and classes of purchasers for those goods are the same. See In

5 See evidence submitted with November 4, 2014 Office Action.
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re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though
there was no evidence regarding channels of trade and classes of consumers, the
Board was entitled to rely on this legal presumption in determining likelihood of
confusion); 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). The Internet evidence in the record
confirms this presumption with goods of the type identified by both Applicant and
registrant being offered for sale on the same Internet webpages. Thus, both
Applicant’s and the registrant’s goods are sold to the general public, and travel in the
same trade channels, including retail apparel outlets and apparel websites.
Applicant raises the following arguments:
1. Applicant’s and registrant’s travel in different trade channels. This argument
is contradicted by the evidence in the record, and, as mentioned above, we must
base our determination on basis of the goods as they are identified in the
involved application and cited registration, rather than on what any evidence
may show as to the actual nature of the goods, their channels of trade and/or
classes of purchasers. In re Total Quality Group Inc., 51 USPQ2d 1474, 1476
(TTAB 1999).
2. Registrant’s website does not display all of the items listed in registrant’s
identification of goods.6 Registrant, however, is the owner of a valid and extant
registration which is entitled to all the presumptions of Section 7(b) of the

6 Applicant’s brief at 12, 18 TTABVUE 13.
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Trademark Act, 15 U.S.C. § 1057(b), including the presumption of validity.
Applicant’s suggestion that the registration is invalid through the non-use of
certain goods listed in the registration is an attack on the validity of the
registration. Questions regarding the validity of registrations are raised in
cancellation proceedings directed to the registration, and not in the context of
ex parte prosecution of an application. In re Calgon Corp., 435 F.2d 596, 168
USPQ 278, 280 (CCPA 1971) (applicant’s argument that its use antedated a
registered mark was effectively an improper collateral attack on the validity of
the registration, which should have been made in formal cancellation
proceedings).
3. There are differences in the goods, and that “even children are taught the
difference between a sweatshirt and a t-shirt, shoes and underwear, as well as
the difference between a baseball cap from a rain hat.”7 The issue is not
whether purchasers would confuse the goods, but rather whether there is a
likelihood of confusion as to the source of the goods. In re Rexel Inc., 223 USPQ
830, 832 (TTAB 1984).
4. “If the specific classification of the word T-shirt is the basis of the denial then
this should have been indicated by the examining attorney, in which case the
appellant would have made its decisions regarding a response accordingly,
[and] the same applies to the generic class of caps and hats.”8 The Examining

7 Applicant’s brief at 9, 18 TTABVUE 10.
8 Applicant’s brief at 10, 18, TTABVUE 11.
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Attorney did so indicate when she stated in the December 10, 2014 Office
Action, “Applicant and registrant identify the following identical goods: shirts,
caps, hats, and T-shirts.”
For the reasons provided, we are not persuaded by Applicant’s arguments.
We next compare the marks for similarities and dissimilarities in appearance,
sound, connotation and commercial impression. Palm Bay, 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 services offered
under the respective marks is likely to result. Coach Servs., Inc. v. Triumph Learning
LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012).
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
(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 Association
of the United States Army, 85 USPQ2d 1264 (TTAB 2007); Sealed Air Corp. v. Scott
Paper Co., 190 USPQ 106 (TTAB 1975).
The only difference in wording between Applicant’s and registrant’s mark is the
addition of “LLC” in Applicant’s mark. Likelihood of confusion has been found where
the entirety of one mark is incorporated within another. See In re Mighty Leaf Tea,
601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (applicant’s mark ML is
Serial No. 86344160
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similar to registrant’s mark ML MARK LEES); Lilly Pulitzer, Inc. v. Lilli Ann Corp.,
376 F.2d 324, 153 USPQ 406, 407 (CCPA 1967) (THE LILLY as a mark for women’s
dresses is likely to be confused with LILLI ANN for women’s apparel including
dresses); In re United States Shoe Corp., 229 USPQ 707, 709 (TTAB 1985) (CAREER
IMAGE for women’s clothing stores and women’s clothing likely to cause confusion
with CREST CAREER IMAGES for uniforms including items of women’s clothing).
Without doubt, the dominant portion of Applicant’s mark is the phrase GOD IS
GOOD, which is identical to the entirety of wording in registrant’s mark. The
designation “LLC” is de minimis in size and is an entity designation without any
trademark significance. In re Industrial Relations Counselors, Inc., 224 USPQ 309
(TTAB 1984) (INDUSTRIAL RELATIONS COUNSELORS, INC. incapable of
functioning as a mark for conducting seminars and research in the field of industrial
relations, the Board attaching no trademark significance to the corporate identifier
“Inc.”); In re E.I. Kane, Inc., 221 USPQ 1203 (TTAB 1984) (OFFICE MOVERS, INC.
incapable of functioning as a mark for moving services; addition of the term “Inc.”
does not add any trademark significance to the matter sought to be registered). The
various circles under the letters in Applicant’s mark have no apparent meaning and
would not be pronounced by purchasers. The stylization of the two marks is not that
remarkable as to sufficiently distinguish the marks. Because of the shared phrase
GOD IS GOOD and the minor differences between the marks, we find that the marks
are highly similar in sound, appearance, meaning and commercial impression.
Serial No. 86344160
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Applicant suggests at p. 14 of its brief that the phrase “God is good” is common
and that registrant’s mark would not come to mind when considering the phrase “God
is good llc.” Applicant’s statement is not supported by any evidence in the record and
hence is unpersuasive. Applicant has not established any weakness as a trademark
in the term “God is good.”
Applicant also points out at page 7 of its brief that registrant’s mark and the GOD
IS GOOD … 4 U mark co-exist, and asks “What is the difference between the [GOD
IS GOOD … 4 U] mark and the applied for mark #86344160 regarding a basis of a
likelihood of confusion?”9 As the Federal Circuit, our primary reviewing court, has
been previously stated, it is well settled that that each case ultimately must be
determined on its own merits and that allowance of prior third-party marks is not
determinative of the registrability of an applicant’s mark. 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 …
allowance of such prior registrations does not bind the Board or this court.”).
In summary, we have found the goods to be identical or related, the trade channels
and classes of purchasers to be identical, and the marks to be highly similar. In view
thereof, we find that Applicant’s mark for its recited goods is likely to cause confusion
with registrant’s mark for its recited goods.
Decision: The refusal to register is affirmed.

9 18 TTABVUE 8.