GoPro, Inc.v.Ross WalmsleyDownload PDFTrademark Trial and Appeal BoardMar 30, 2017No. 91216035 (T.T.A.B. Mar. 30, 2017) Copy Citation This Opinion is not a Precedent of the TTAB Mailed: March 30, 2017 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ GoPro, Inc. v. Ross Walmsley _____ Opposition No. 91216035 to Application Serial No. 85825238 _____ Connie L. Ellerbach, Eric J. Ball and Mark A. Jansen, of Fenwick & West LLP, for Opposer, GoPro, Inc. Ross Walmsley, pro se. _____ Before Zervas, Kuczma and Adlin, Administrative Trademark Judges. Opinion by Kuczma, Administrative Trademark Judge: Ross Walmsley (“Applicant”) filed an application to register the mark: Opposition No. 91216035 - 2 - for: Aromatized beverages based on fruit, protein, cordial, sugar and other fluid nutrients, namely, carbohydrate drinks for use as food fillers and protein drinks for use as a food fillers and not for use as a meal replacement; beauty beverages, namely, fruit juices and energy drinks containing nutritional supplements; bottled drinking water; coffee-flavored soft drink; cola drinks; colas; concentrates and powders used in the preparation of energy drinks and fruit-flavored beverages; concentrates for making fruit drinks; concentrates, syrups or powders for making soft drinks, tea-flavored beverages or sports and energy drinks; distilled drinking water; drinking water; drinking water with vitamins; energy drinks; energy drinks enhanced with vitamins, minerals, nutrients; essences for use in making soft drinks; fruit drinks; fruit juices; fruit flavored drinks; fruit-based soft drinks flavored with tea; guarana drinks; isotonic drinks; non-alcoholic drinks, namely, energy shots; pop; powders used in the preparation of isotonic sports drinks and sports beverages; preparations for making beverages, namely, fruit drinks; prepared entrees consisting of fruit drinks and fruit juices, fruit-based beverages, non-alcoholic beverages containing fruit juices, non-alcoholic fruit extracts used in the preparation of beverages, non-alcoholic fruit juice beverages, vegetable juices, vegetable-fruit juices and smoothies; soft drinks; sports drinks; syrups for making fruit-flavored drinks and soft drinks; vegetable drinks, in International Class 32.1 GoPro, Inc., formerly Woodman Labs, Inc., (“Opposer”), opposes registration of Applicant’s mark on the grounds of priority and likelihood of confusion under Section 1 Application Serial No. 85825238 was filed on January 16, 2013, under Sections 1(b) and 44(e) of the Trademark Act, 15 U.S.C. §§ 1051(b) and 1126(e), asserting a claim of priority under Section 44(d), 15 U.S.C. § 1126(d), as of January 14, 2013, which was perfected under Section 44(e), based on issuance of Australia Registration No. 1535525. The application includes this description of the mark: “The mark consists of the term ‘GOPRO’ in blue letters touching a circled letter ‘G’ in gray.” The colors blue and gray are claimed as a feature of the mark. On March 7, 2016, in Opposition No. 91215504, judgment by default was entered against Applicant with registration refused with respect to the goods in International Class 25 only. Thus, this Opposition involves the remaining goods in International Class 32. Opposition No. 91216035 - 3 - 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), dilution under Section 43(c), 15 U.S.C. § 1125(c), and false suggestion of a connection under Section 2(a), 15 U.S.C. § 1052(a). Opposer bases its opposition on prior use of the mark GOPRO and variations thereof, and its ownership of, inter alia, Registration No. 3032989 issued on December 20, 2005, for the mark GOPRO (standard characters) for photographic equipment, namely film cameras and digital cameras, cases and housings for cameras and camera straps, in International Class 9.2 Opposer also alleges that its GOPRO mark became famous prior to the filing date of Applicant’s application and that there is no issue as to priority because Opposer’s GOPRO mark was filed and registered prior to the filing date of Applicant’s Application.3 Applicant denied the salient allegations of the Notice of Opposition and pleaded several affirmative defenses which were not pursued and are therefore waived. I. The Record By rule, the record includes Applicant’s application file and the pleadings. Trademark Rule § 2.122 (b), 37 CFR § 2.122 (b). Additionally, Opposer introduced the following testimony and evidence: Notice of Reliance on Opposer’s Registration No. 3032989, Exhibit A (23 TTABVUE 2-14); Notice of Reliance on Applicant’s Rule 36 Admissions, Exhibits B and C (23 TTABVUE 15-36); 2 Registration No. 3032989 issued December 20, 2005; renewed. 3 Notice of Opposition ¶ No. 2 (1 TTABVUE 11). Record citations are to TTABVUE, the Board’s publically available docket history system. See Turdin v. Trilobite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Opposition No. 91216035 - 4 - Notice of Reliance on Third-Party Registrations Exhibits D-R (23 TTABVUE 37-212). Applicant did not submit any evidence or testimony, nor did he submit a trial brief. II. Evidence Opposer timely served its First Set of Requests For Admission on Applicant by U.S. mail addressed to Applicant at: 1) Applicant’s address of record and 2) at the address identified by Applicant in an email Applicant sent to Opposer dated October 20, 2015. Opposer also sent Applicant copies of the First Set of Requests For Admission via email to the two email addresses for Applicant identified in Applicant’s October 20, 2015 email to Opposer. Inasmuch as Applicant did not respond to Opposer’s First Set of Requests For Admission which were timely served on Applicant, the Requests for Admission are deemed admitted pursuant to Fed.R.Civ.P. 36. Trademark Rule 2.120(k)(3)(i), 37 CFR § 2.120(k)(3)(i). Trademark Board Manual of Procedure § 407.03(a) (TBMP) (Jan. 2017). III. Standing and Priority Opposer bears the burden of proving both standing to oppose and at least one valid ground for refusal of registration. Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999); Sanyo Watch Co., Inc. v. Sanyo Electric Co., Ltd., 691 F.2d 1019, 215 USPQ 833, 834 (Fed. Cir. 1982). To establish standing in an opposition, an opposer must show both a real interest in the proceeding as well as a reasonable basis for its belief of damage. Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014); Ritchie v. Simpson, 50 USPQ2d at 1025; Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ Opposition No. 91216035 - 5 - 185, 189 (CCPA 1982). Because Opposer has properly made its pleaded Registration No. 3032989 for the mark GOPRO of record, it has established standing to oppose registration of Applicant’s mark and priority is not an issue as to those goods covered by the registration. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974). IV. Likelihood of Confusion Our determination under Section 2(d) of the Trademark Act is based on an analysis of all of the relevant probative evidence in the record related to 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 Imports, Inc. v. Veuve Clicquot Pansardin Maison Fondee En 1722, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods. Federated Foods, Inc., v. Fort Howard 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.”). Additionally, Opposer asserts the fame of its GOPRO mark; the overlap between Opposer’s and Applicant’s trade channels; the conditions under which, and buyers to whom, sales are made; and Applicant’s intent in selecting the mark all also support a finding of likelihood of confusion. We address each of these factors below. Opposition No. 91216035 - 6 - Similarity of the Marks Turning to the first du Pont factor, we consider “the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.” du Pont, 177 USPQ at 567. The test is not whether the marks can be distinguished when subjected to a side-by-side comparison, but rather whether they are sufficiently similar in terms of their overall commercial impression that consumers would assume a connection between the parties. Viewing the marks in their entireties, we find that consumers will perceive the marks GOPRO and as having the same meaning and engendering the same commercial impression. Applicant’s mark incorporates the entirety of Opposer’s GOPRO mark, followed by the letter G in a circle. Because Applicant’s mark and Opposer’s mark both begin with the term “gopro,”they are similar in sound and appearance. Moreover, Applicant admits the marks are “virtually identical,” both visually and auditorily.4 The presence of the additional designation at the end of Applicant’s mark does not eliminate the likelihood of confusion because the first term in both marks is identical. See, e.g., China Healthways Inst., Inc. v. Wang, 491 F.3d 1337, 83 USPQ2d 4 Opposer’s Notice of Reliance Pursuant to 37 CFR § 2.120(j) on Applicant’s Rule 36 Admissions (23 TTABVUE 15-18); Exhibit B OPPOSER GOPRO, INC.’s FIRST SET OF REQUESTS FOR ADMISSION TO APPLICANT ROSS WALMSLEY, Requests for Admission Nos. 34-39; 60 (23 TTABVUE 28, 31). Opposition No. 91216035 - 7 - 1123 (Fed. Cir. 2007) (the common word in CHI and CHI PLUS is likely to cause confusion despite differences in the marks’ designs); In re West Point-Pepperell, Inc., 468 F.2d 200, 175 USPQ 558 (CCPA 1972) (WEST POINT PEPPERELL likely to cause confusion with WEST POINT for similar goods); Lilly Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d 324, 153 USPQ 406 (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 (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). Indeed, Applicant’s mark may be perceived as a version of Opposer’s mark, while Opposer’s mark GOPRO may be perceived as a shortened version of Applicant’s mark . See In re United States Shoe, 229 USPQ at 709 (applicant’s mark CAREER IMAGE would appear to prospective purchasers to be a shortened form of registrant’s mark CREST CAREER IMAGES). Additionally, the stylization of Applicant’s mark does not sufficiently distinguish it from Opposer’s mark to avoid confusion. Because Opposer’s mark is registered in standard characters, Opposer is not limited to any particular depiction of its mark; it may be displayed in any lettering style; the rights reside in the wording or other literal elements and not in any particular display. In re White Rock Distilleries Inc., 92 USPQ2d 1282, 1284 (TTAB 2009). Thus, Opposer may display its standard character mark in the identical font style and size in which Applicant’s applied-for mark is shown. In re Viterra Inc., 101 USPQ2d 1905, 1909 (Fed. Cir. 2012); Citigroup Opposition No. 91216035 - 8 - Inc. v. Capital City Bank Group Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011); In re Strategic Partners Inc., 102 USPQ2d 1397, 1399 (TTAB 2012). In any event, consumers encountering Applicant’s mark are likely to believe that it is a new or modified version of Opposer’s mark. Accordingly, the marks are very similar. Fame Because of the extreme deference accorded to a famous mark in terms of the wide latitude of legal protection it receives, and the dominant role fame plays in the likelihood of confusion analysis, Opposer, the party asserting that its mark is famous, has the burden to prove it. Coach Services Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1720 (Fed. Cir. 2012); Lacoste Alligator S.A. v. Maxoly Inc., 91 USPQ2d 1594, 1597 (TTAB 2009); Leading Jewelers Guild Inc. v. LJOW Holdings LLC, 82 USPQ2d 1901, 1904 (TTAB 2007). Inasmuch as Applicant has admitted the “fame” of Opposer’s mark,5 we find Opposer’s GOPRO mark to be famous. We hasten to add, however, that even if Opposer’s mark was not famous, we would reach the same ultimate result on the likelihood of confusion. Similarity of Goods The next du Pont factor we consider is the “relatedness of the goods” in connection with which each mark is used. du Pont, 177 USPQ at 567; Packard Press Inc. v. Hewlett-Packard Co., 56 USPQ2d 1351, 1354 (Fed. Cir. 2000). Applicant has admitted 5 Requests for Admission Nos. 4-6 (23 TTABVUE 25). Opposition No. 91216035 - 9 - that his goods (beverages including fruit juices and energy drinks containing nutritional supplements, bottled drinking water and soft drinks) are related to Opposer’s goods (cameras and digital cameras, cases and housings for cameras, and camera straps).6 Moreover, Applicant has admitted that he chose the mark because his goods are used or likely to be used with Opposer’s goods.7 Opposer also introduced six use-based third-party registrations, owned by three different registrants, which it asserts “cover both cameras and energy drinks”:8 Registration No. Mark Goods/Services 3965302 LIVE LAUGH LOVE Class 35 Wholesale and retail store services and on-line retail and wholesale services featuring … cameras … energy drinks, fruit drinks, mineral and carbonated waters, soft drinks … 3991089 GET STUFF. DONE. Class 35 On-line retail store services featuring … cameras … energy drinks … 4013859 LESS SCHLEP. MORE SHOP. Class 35 On-line retail store services featuring … cameras … energy drinks … 6 Request for Admission No. 13 (23 TTABVUE 26). 7 Request for Admission No. 30 (23 TTABVUE 27). 8 Opposer’s Trial Brief p. 10 (24 TTABVUE 15); Opposer’s Exhibits C-R (23 TTABVUE 35- 212). Opposer also submitted Registration Nos. 3718691, 4270232, 4329886, 4527442, 4545573, 4553733 and 4853357 which were registered pursuant to § 66(a) of the Trademark Act; and Registration Nos. 4244266 and 4861822 that were registered based on European Community Trademark Registrations pursuant to § 44(d) of the Trademark Act. Inasmuch as these Registrations were registered pursuant to Section 44(e) or Section 66 of the Trademark Act, 15 U.S.C. §§ 1126(e) or 1141f, for which no maintenance documents evincing use have been filed, they possess very little, if any, probative value in showing the relatedness of the goods. In re 1st USA Realty Professionals, Inc., 84 USPQ2d 1581, 1583 (TTAB 2007); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470, n.6 8 (TTAB 1988), aff’d, 864 F.2d 149 (Fed. Cir. 1988). Therefore, none of these Registrations have been considered. Opposition No. 91216035 - 10 - 4171113 BECAUSE TIME IS A LUXURY Class 35 …; retail store services featuring … cameras … energy drinks … ; … 4180739 UTIQUE SHOP & Design Class 35 On-line retail store services featuring … cameras … energy drinks … 4256347 GET SET TO JET SET Class 35 …; retail store services featuring … cameras … energy drinks … Third-party registrations which cover a number of differing goods and/or services, and which are based on use in commerce, although not evidence that the marks shown therein are in use on a commercial scale or that the public is familiar with them, may nevertheless have some probative value to the extent that they may serve to suggest that such goods or services are of a type which may emanate from a single source. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1440 (TTAB 2012); In re Mucky Duck Mustard Co., 6 USPQ2d at 1470 n.6; see also In re Albert Trostel & Sons Co., 29 USPQ2d at 1785-86. The marks in these third-party registrations are registered for on-line and retail store services selling numerous goods including goods identical to those of Applicant and Opposer; however, the registrations are for services. Thus, the third-party registrations for on-line and retail store services are not evidence that cameras and beverages are sold under the same or very similar marks. In determining the similarity or dissimilarity of Applicant’s and Opposer’s goods, however, the more similar the marks at issue, the less similar the goods need to be for us to find a likelihood of confusion. In re Shell Oil Co., 26 USPQ2d 1687, 1688-89 (Fed. Cir. 1993); In re Opus One Inc., 60 USPQ2d 1812 (TTAB 2001). When the marks Opposition No. 91216035 - 11 - are substantially identical, as they are here, it is only necessary that there be a viable relationship between the goods or services to support a finding of likelihood of confusion. In re Iolo Technologies LLC, 95 USPQ2d 1498, 1499 (TTAB 2010); In re Concordia Int’l Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983). Particularly in view of the strong similarity between Applicant’s and Opposer’s marks, given Applicant’s admissions that he chose his mark because his goods are likely to be used with Opposer’s goods, and that his goods are related to Opposer’s goods, there is a likelihood that the public will believe Applicant’s goods and Opposer’s goods have a common source. Overlap in Trade Channels Turning to the channels of trade, there are no restrictions in the identifications of goods as to the parties’ respective channels of trade.9 Applicant’s failure to respond to Opposer’s Requests for Admission result in his deemed admission that he intends to sell and sells his goods in the same trade channels as Opposer.10 Additionally, Applicant admits the marketing channels he uses to promote, offer or sell his goods are likely to lead consumers to assume there is an affiliation and relationship between Applicant and Opposer which is likely to create consumer confusion.11 This factor therefore weighs in favor of a finding of likelihood of confusion. 9 Also see, Request for Admission No. 47 (23 TTABVUE 29). 10 Requests for Admission Nos. 22-28 (23 TTABVUE 27). 11 Requests for Admission Nos. 40-45 (23 TTABVUE 28-29). Opposition No. 91216035 - 12 - Conditions under which, and buyers to whom, the sales are made We next consider the conditions under which and buyers to whom Applicant’s and Opposer’s goods are provided, i.e., “impulse” versus careful sophisticated customers. Neither party’s identification of goods is restricted to certain purchasers. Therefore, we must presume that the parties’ goods are offered to all types of purchasers. Additionally, Applicant’s deemed admissions that the parties goods are sold to both sophisticated and unsophisticated customers and that some of the customers are the same12 also weighs in favor of finding a likelihood of confusion. Applicant’s intent in selecting the mark Under the thirteenth du Pont factor, evidence of Applicant’s bad faith adoption of his mark supports a finding of likelihood of confusion. Edom Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1553 (TTAB 2012); L.C. Licensing Inc. v. Berman, 86 USPQ2d 1883, 1891 (TTAB 2008) (bad faith is strong evidence that confusion is likely, as such an inference is drawn from the imitator’s expectation of confusion). Here, we have Applicant’s deemed admissions that he adopted his mark “to refer to [Opposer]” and “because it is virtually identical to” Opposer’s mark.13 Applicant also admits that he created his mark so that it would appear virtually identical or similar to Opposer’s mark.14 Yet, Applicant admits that his mark is different from 12 Requests for Admission Nos. 7-11 (23 TTABVUE 25-26). 13 Requests for Admission Nos. 59-60 (23 TTABVUE 31). 14 Request for Admission No. 62 (23 TTABVUE 31). Opposition No. 91216035 - 13 - Opposer’s mark because it contains a “G” at the end.15 Applicant’s deemed admissions, without more, do not show that Applicant engaged in bad faith adoption with intent to trade on the good will of Opposer. Cf. Edom Labs. Inc. v. Lichter, 102 USPQ2d at 1553-54 (overwhelming evidence made clear applicant’s bad faith intent to cause consumer confusion); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1441-42 (TTAB 2012) (applicant had history and pattern of filing intent-to-use applications for a disparate range of products for which he had no industry-relevant experience, and where the applied-for marks were identical to some of the best known, previously registered marks in the country); L.C. Licensing Inc. v. Berman, 86 USPQ2d at 1891 (applicant’s explanation of his adoption of the mark and his strategy to build additional brands strained credulity which coupled with the fact that applicant was unable to articulate why he thought the mark would be a good mark for his goods, and his inability to explain why he tried to register two urban lifestyle clothing brands for custom automotive accessories, leads to conclusion that applicant’s adoption of the mark was in bad faith). V. Dilution We next consider Opposer’s dilution claims for tarnishment and blurring of its GOPRO mark under 15 U.S.C. §§ 1063(a) and 1125(c).16 To establish a claim for dilution, Opposer must prove that its mark is and was famous before Applicant filed 15 Request for Admission No. 77 (23 TTABVUE 32). 16 Notice of Opposition ¶26 (1 TTABVUE). Opposition No. 91216035 - 14 - its application,17 and that some blurring and tarnishing of Opposer’s mark is likely to occur if the registration is granted. 15 U.S.C. § 1125(c). Fame for likelihood of confusion and fame for dilution are distinct concepts, and dilution fame requires a more stringent showing. Coach Services Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1724 (Fed. Cir. 2012) (citing 4 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 24:104 at 24-290 (4th ed. 2011) (“The standard for the kind of ‘fame’ needed to trigger anti- dilution protection is more rigorous and demanding than the ‘fame’ which is sufficient for the classic likelihood of confusion test.”)); Research in Motion Ltd. v. Defining Presence Mktg. Grp. Inc., 102 USPQ2d 1187, 1197 (TTAB 2012); 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1727 (TTAB 2007). The only evidence of the “fame” of Opposer’s mark comes from Applicant’s deemed admissions.18 Though Applicant’s admissions “that the GOPRO Mark is famous” and “was famous at the time” he adopted and applied to register his mark are sufficient to show the fame of Opposer’s mark for establishing likelihood of confusion, they are too conclusory and lacking in detail to support a finding that Opposer’s mark is famous under the dilution standard. Thus, the deemed admissions of the fame of Opposer’s mark do not support the more stringent requirement for dilution fame requiring a showing of widespread recognition by the general public. 15 U.S.C. 1125(c)(2)(A); Coach Services Inc. v. Triumph Learning LLC, 101 USPQ2d at 1725; 17 Applicant’s application claimed priority based on Applicant’s Australian registration which was filed on January 14, 2013; thus, his U.S. application date is January 14, 2013. 18 Requests for Admission Nos. 4-6 (23 TTABVUE 25). Opposition No. 91216035 - 15 - Toro Co. v. ToroHead Inc., 61 USPQ2d 1164, 1181 (TTAB 2001). Accordingly, Opposer has not presented sufficient evidence of fame for dilution purposes and we need not address the remaining statutory factors for dilution. VI. False Suggestion of a Connection Section 2(a) of the Trademark Act, 15 U.S.C. §1052(a), prohibits registration of “matter which may … falsely suggest a connection with persons, living or dead, institutions, beliefs or national symbols.” 15 U.S.C. § 1052(a); Boston Athletic Ass’n v. Velocity, LLC, 117 USPQ2d 1492, 1495 (TTAB 2015). The creation of a false suggestion of a connection results from the use of something that is consistent with the plaintiff’s identity. To prevail on its § 2(a) claim for false suggestion of a connection, Opposer must prove: (1) Applicants’ mark is the same as or a close approximation of Opposer’s previously used name or identity; (2) the term “GOPRO” is so uniquely and unmistakably associated with Opposer as to constitute Opposer’s name or identity such that when Applicant’s mark is used in connection with its goods a connection with Opposer would be assumed; (3) Opposer is not connected with the goods that are sold or will be sold by Applicant under his mark; and (4) that Opposer’s name or identity is of sufficient fame or reputation that when Applicant’s mark is used on Applicant’s goods a connection with Opposer would be presumed. See University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 703 F.2d 1372, 217 USPQ 505, 509-10 (Fed. Cir. 1983), aff’g 213 USPQ 594 (TTAB 1982); Bos. Athletic Ass’n v. Velocity, LLC, 117 USPQ2d at 1495; L. & J.G. Stickley Opposition No. 91216035 - 16 - Inc. v. Cosser, 81 USPQ2d 1956, 1972 (TTAB 2007); Buffett v. Chi-Chi’s, Inc., 226 USPQ 428, 429 (TTAB 1985). Opposer has not presented evidence sufficient to prove this claim. Looking at the first factor, Applicant’s deemed admissions only support that Applicant’s mark is a close approximation of Opposer’s mark, not that Applicant’s mark is the same as or a close approximation of Opposer’s name or identity. Moving on to the second through fourth factors, there is no evidence addressing those factors. Thus, Opposer’s claim under § 2(a) fails for lack of proof. VII. Conclusion We have carefully considered all of the evidence made of record pertaining to the issues of likelihood of confusion, dilution and false suggestion of a connection, including evidence and arguments not specifically discussed in this opinion. Although Opposer failed to prove dilution and false suggestion of a connection, we conclude that it has shown a likelihood of confusion. Applicant’s mark is strikingly similar to Opposer’s standard character mark GOPRO. Applicant admits that he chose the mark because his goods are used or likely to be used with Opposer’s goods. Thus, consumers familiar with Opposer’s cameras and photographic equipment sold under its famous GOPRO mark would be likely to mistakenly believe, upon encountering Applicant’s mark used in connection with related goods including beverages, juices and drinks, traveling in the same trade channels and having the same classes of customers, that such goods are Opposition No. 91216035 - 17 - associated with or sponsored by Opposer and likely to cause confusion, or to cause mistake or to deceive. Decision: The opposition to registration of the mark shown in Serial No. 85825238 under §§ 2(a) and 43(c), 15 U.S.C. §§ 1052(a) and 1125(c), is dismissed, but is sustained under § 2(d), 15 U.S.C. § 1052(d). Registration to Applicant is refused. Copy with citationCopy as parenthetical citation