Good Sports, Inc.

Trademark Trial and Appeal Board

Mar 14, 2013

No. 85162578 (T.T.A.B. Mar. 14, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: March 14, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Good Sports, Inc.
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Serial No. 85162578
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Mario G. Ceste of the Law Office of Mario G. Ceste LLC for Good Sports, Inc.

John D. Dalier, Trademark Examining Attorney, Law Office 106 (Mary I. Sparrow,
Managing Attorney).
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Before Bucher, Bergsman and Wellington, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Good Sports, Inc. (“applicant”) filed a use based application to register the mark
LONE WOLF NO CLUB, in standard character form, for the following goods as
amended:
clothing for motorcycle enthusiasts, namely, tee shirts,
sweat shirts, hooded sweat shirts, tank-tops, sleeveless
shirts, hats, caps, underwear, jackets, bandannas, gloves,
in Class 25.
The 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 so
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resembles the mark LONE WOLF, in typed drawing form, for “clothing, namely, t-
shirts and caps,” in Class 25, as to be likely to cause confusion.1
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. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). See also, In re Majestic Distilling Company, Inc., 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
similarities between the services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry
mandated by §2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks”). These factors, and any
other relevant du Pont factors in the proceeding now before us, will be considered in
this decision.
A. The similarity or dissimilarity of the marks in their entireties as to
appearance, sound, connotation and commercial impression.
We turn first to the du Pont likelihood of confusion factor focusing on the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont De Nemours & Co., 177
USPQ at 567. In a particular case, any one of these means of comparison may be
critical in finding the marks to be similar. In re White Swan Ltd., 8 USPQ2d 1534,
1535 (TTAB 1988); In re Lamson Oil Co., 6 USPQ2d 1041, 1042 (TTAB 1987). In

1 Registration No. 2733871, issued July 8, 2003; Sections 8 and 15 affidavits accepted and
acknowledged.
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comparing the marks, we are mindful that 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 so
that confusion as to the source of the goods offered under the respective marks is
likely to result. San Fernando Electric Mfg. Co. v. JFD Electronics Components
Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc. v.
Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d unpublished, No. 92-1086
(Fed. Cir. June 5, 1992). The proper focus is on the recollection of the average
customer, who retains a general rather than specific impression of the marks.
Winnebago Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB
1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
The registered mark is LONE WOLF and applicant’s mark is LONE WOLF NO
CLUB. The marks are similar to the extent that they both include the term LONE
WOLF. The term “Lone Wolf” means “a person who prefers to live, act, or work
alone or independent of others.”2 The addition of the term “No Club” to applicant’s
mark does not distinguish the marks because the term “No Club” describes or
reinforces the meaning of the term “Lone Wolf” by pointing out that the “Lone Wolf”
does not belong to a club.
The significance or dominance of the term LONE WOLF in applicant’s mark is
emphasized by its location as the first part of the mark. See Presto Products Inc. v.

2 Dictionary.com Unabridged based on the RANDOM HOUSE DICTIONARY (2013). The
Board may take judicial notice of dictionary definitions, 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), including online dictionaries that exist in printed format or have regular
fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
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Nice-Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“[I]t is often the first
part of a mark which is most likely to be impressed upon the mind of a purchaser
and remembered”). See also Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin, 396
F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (“Veuve” is the most prominent
part of the mark VEUVE CLICQUOT because “veuve” is the first word in the mark
and the first word to appear on the label); Century 21 Real Estate Corp. v. Century
Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon
encountering the marks, consumers will first notice the identical lead word).
The significance of the term LONE WOLF is further emphasized because
applicant’s mark incorporates the registrant’s entire mark, thus, suggesting that
applicant’s products are a variation of registrant’s products. See The Wella Corp, v.
California Concept Corp., 558 F.2d 1019, 194 USPQ 419, 422 (CCPA 1977)
(CALIFORNIA CONCEPT and surfer design for men’s cologne, hair spray,
conditioner and shampoo is likely to cause confusion with the mark CONCEPT for
cold permanent wave lotion and neutralizer); Coca-Cola Bottling Co. of Memphis,
Tennessee, Inc. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188 USPQ 105
(CCPA 1975) (applicant’s mark BENGAL LANCER for club soda, quinine water and
ginger ale is likely to cause confusion with BENGAL for gin); In re West Point-
Pepperell, Inc., 468 F.2d 200, 175 USPQ 558 (CCPA 1972) (WEST POINT
PEPPERELL and griffin design for fabrics is likely to cause confusion with WEST
POINT for woolen piece goods); Johnson Publishing Co. v. International
Development Ltd., 221 USPQ 155, 156 (TTAB 1982) (applicant’s mark EBONY
DRUM for hairdressing and conditioner is likely to cause confusion with EBONY for
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cosmetics); In re Cosvetic Laboratories, Inc., 202 USPQ 842 (TTAB 1979)
(applicant’s mark HEAD START COSVETIC for vitamins for hair conditioners and
shampoo is likely to cause confusion with HEAD START for men’s hair lotion and
after-shaving lotion).
Applicant argues that as evidenced by the dozen third-party registrations
containing the term “Lone Wolf,” “Lone Wolf” is a weak mark entitled to only a
narrow scope of protection or exclusivity of use.3 In its August 10, 2011 response,
applicant submitted the search results page from a TESS search for the term “Lone
Wolf” displaying the mark, serial number, registration number and status. The
search results did not display the goods or services. In response, the Trademark
Examining Attorney pointed out that the cited registration is the only mark
containing the term “Lone Wolf” used for clothing.4 The examining attorney is
correct that the third-party registrations submitted by applicant are of limited
probative value because they do not cover the same goods as in the application. In
re Thor Tech Inc., 90 USPQ2d 1634, 1639 (TTAB 2009) (the third-party
registrations are of limited probative value because the goods identified in the
registrations appear to be in fields which are far removed from the goods at issue).
See also Key Chemicals, Inc. v. Kelite Chemicals Corp., 464 F.2d 1040, 175 USPQ
99, (CCPA 1972) (“Nor is our conclusion altered by the presence in the record of
about 40 third-party registrations which embody the word “KEY”. The great
majority of those registered marks are for goods unrelated to those in issue, and

3 Applicant’s Brief, p. 1.
4 October 6, 2011 Office action.
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there is no evidence that they are in continued use. We, therefore, can give them
but little weight in the circumstances present here”).
In view of the foregoing, we find that the marks LONE WOLF and LONE
WOLF NO CLUB are similar in terms of appearance, sound, meaning and
commercial impression.
B. The similarity or dissimilarity and nature of the goods, channels of trade and
classes of consumers.
Applicant is seeking to register its mark for “clothing for motorcycle
enthusiasts, namely, tee shirts, sweat shirts, hooded sweat shirts, tank-tops,
sleeveless shirts, hats, caps, underwear, jackets, bandannas, gloves” and the mark
in the cited registration identifies “clothing, namely, t-shirts and caps.” Registrant’s
description of goods is not restricted to any particular channel of trade or classes of
consumers and, therefore, registrant’s goods may encompass clothing for motorcycle
enthusiasts. See In re Linkvest S.A., 24 USPQ2d 1716 (TTAB 1992); In re Elbaum,
211 USPQ 639, 640 (TTAB 1981). Accordingly, because both descriptions of goods
include tee shirt and caps, applicant’s description of goods and registrant’s
description of goods are in part identical.
Because the goods described in the application and the cited registration are in
part identical, we must presume that the channels of trade and classes of
purchasers are the same. See American Lebanese Syrian Associated Charities Inc. v.
Child Health Research Institute, 101 USPQ2d 1022, 1028 (TTAB 2011); In re Smith
and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994) (“Because the goods are legally
identical, they must be presumed to travel in the same channels of trade, and be
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sold to the same class of purchasers.”). See also In 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).
C. Balancing the factors.
Because the marks are similar, the goods are in part identical and we presume
the channels of trade and the classes of consumers are the same, we find that
applicant’s mark LONE WOLF NO CLUB for “clothing for motorcycle enthusiasts,
namely, tee shirts, sweat shirts, hooded sweat shirts, tank-tops, sleeveless shirts,
hats, caps, underwear, jackets, bandannas, gloves” is likely to cause confusion with
the mark LONE WOLF for “clothing, namely, t-shirts and caps.”
Decision: The refusal to register is affirmed.