Grapevine Intellectual Properties, LLC

Trademark Trial and Appeal Board

Nov 13, 2008

No. 77211233 (T.T.A.B. Nov. 13, 2008)

Mailed:
November 13, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Grapevine Intellectual Properties, LLC
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Serial No. 77211233
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Edmund J. Ferdinand, III and Jessica S. Rutherford of Grimes &
Battersby, LLP for Grapevine Intellectual Properties, LLC.

Ahsen Khan, Trademark Examining Attorney, Law Office 113 (Odette
Bonnet, Managing Attorney).
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Before Hairston, Bergsman and Ritchie de Larena, Administrative
Trademark Judges.

Opinion by Ritchie de Larena, Administrative Trademark Judge:

Grapevine Intellectual Properties, LLC (“applicant”) filed
an application to register the mark ANGEL FACE and design, shown
below, for goods ultimately identified as “men’s and women’s
athletic footwear and shoes,” in International Class 251. As
part of the application, applicant stated that the portrait
included as part of the mark does not identify a living
individual.

1 Serial No. 77211233, filed June 20, 2007, alleging a bona fide intent
to use the mark in commerce pursuant to Section 1(b) of the Trademark
Act, 15 U.S.C. §1051(b).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77211233
2

The Trademark Examining Attorney refused to register
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d), on the ground that applicant’s mark so
resembles the registered mark “ANGEL FACE,” in typed drawing
form, for “children’s clothing, namely, tops, bottoms, jackets,
sweat suits, pants, and playsuits” in International Class 25,2
that when used on or in connection with applicant’s identified
goods, it is likely to cause confusion or mistake or to deceive.
Upon final refusal of registration, applicant filed a
timely appeal. Both applicant and the examining attorney filed
briefs. For the reasons discussed herein, the Board affirms the
refusal to register.

2 Registration No. 2370580, issued July 25, 2000; Sections 8 and 15
affidavits accepted and acknowledged. The registrant claimed January
1997 as its dates of first use and first use in commerce.
Serial No. 77211233
3
We base our determination under Section 2(d) on an analysis
of all of the probative evidence of record bearing on a
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 goods or 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”). We consider each of the factors as to which
applicant or the examining attorney presented arguments or
evidence.
The Marks
We consider and compare the appearance, sound, connotation
and commercial impression of the marks in their entireties. In
re E. I. du Pont De Nemours & Co., 177 USPQ at 567. The cited
registered mark consists entirely of the words “ANGEL FACE,”
which are also the only wording in applicant’s mark. Thus, the
word portions of the marks are identical. The only difference
between the marks is applicant’s design element.

Serial No. 77211233
4
With respect to the design portion of applicant’s mark,
where a mark consists of words as well as a design, the words
are generally dominant because the words will be used to call
for or refer to the goods. CBS Inc. v. Morrow, 708 F.2d 1579,
1581-82 (Fed. Cir. 1983); In re Dakin’s Miniatures Inc., 59
UPSQ2d 1593, 1596 (TTAB 2001); In re Appetito Provisions Co.,
Inc., 3 USPQ2d 1553, 1554 (TTAB 1987). This is true of
applicant’s mark, whose design of a woman’s face merely presents
a pictorial representation of the words “ANGEL FACE”; that is,
the portrait emphasizes the word portion because it is the
representation of a woman with an angelic face. The design does
not change the connotation of appliant’s mark, which is the same
as that of the cited registered mark.
In sum, the marks are substantially similar in terms of
appearance, sound, meaning and commercial impression. In view
of the foregoing, we find that the first du Pont factor weighs
heavily in favor of finding a likelihood of consumer confusion.
The Goods and Channels of Trade

In determinining the similarity or dissimilarity of the
goods, we note that the more similar the marks at issue, the
less similar the goods or services need to be for the Board to
find a likelihood of confusion. In re Opus One Inc., 60 USPQ2d
1812, 1815 (TTAB 2001). It is only necessary that there be a
viable relationship between the goods or services to support a
Serial No. 77211233
5
finding of likelihood of confusion. In re Concordia Int’l
Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983). Goods or
services need not be identical or even competitive in order to
support a finding of likelihood of confusion. Rather, it is
enough that the goods or services are related in some manner or
that some circumstances surrounding their marketing are such
that they would be likely to be seen by the same persons under
circumstances which could give rise, because of the marks used
or intended to be used therewith, to a mistaken belief that they
originate from or are in some way associated with the same
producer or that there is an association between the producers
of each parties’ goods or services. In re Melville Corp., 18
USPQ2d 1386 (TTAB 1991).
Applicant’s identified goods are footwear and shoes for men
and women while the cited registration includes various items of
clothing for children. While applicant’s goods do not overlap
with those in the cited registration, the examining attorney has
submitted copies of use-based, third-party registrations
covering goods of the type in both the application and the cited
registration. These include both clothing for children, as
identified by the registrant, and shoes for men and women, as
identified by applicant. Copies of use-based, third-party
registrations may serve to suggest that the goods are of a type
Serial No. 77211233
6
which may emanate from a single source. See In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993).
Applicant has argued that footwear is sold separately and
in different channels of trade than clothing. However, the
examining attorney submitted evidence from websites of shoe
stores such as Footlocker and Nine West, showing that they
advertise and sell both footwear and clothing, side-by-side.
Additionally, there is nothing in the recital of goods in the
cited registration that limits the registrant’s channels of
trade. In the absence of specific limitations in the
registration, we must presume that registrant’s goods will
travel in all normal and usual channels of trade and methods of
distribution. Squirtco v. Tomy Corporation, 697 F.2d 1038, 216
USPQ 937, 939 (Fed. Cir. 1983). See In re Linkvest S.A., 24
USPQ2d 1716, 1716 (TTAB 1992) (because there are no limitations
as to channels of trade or classes of purchasers in either the
application or the cited registration, it is presumed that the
services in the registration and the application move in all
channels of trade normal for those services, and that the
services are available to all classes of purchasers for the
listed services). Since there are no limitations on the
channels of trade in applicant’s identification of goods either,
we must make the same presumption with regard to applicant’s
goods. In other words, there is nothing that prevents the
Serial No. 77211233
7
registrant’s clothing from being sold in the same channels of
trade and to the same classes of consumers that purchase
athletic footwear and shoes (and vice versa). Furthermore,
since parents are the likely purchasers of their children’s
clothing, the target consumers of both registrant and applicant
are the same. Accordingly, we find that these du Pont factors
weigh in favor of finding a likelihood of consumer confusion.
Balancing the Factors
In view of our findings that the marks are substantially
similar, the goods are similar, and the goods move in the same
channels of trade to the same purchasers, we find that
applicant’s mark ANGEL FACE and design for athletic footwear and
shoes is likely to cause confusion with the registered mark
ANGEL FACE for “children’s clothing, namely, tops, bottoms,
jackets, sweat suits, pants, and playsuits.”
Decision: The refusal to register is affirmed.