Hangzhou Standard Mayo Industrial Co., Ltd.

Trademark Trial and Appeal Board

Jul 24, 2019

87883128 (T.T.A.B. Jul. 24, 2019)

Mailed: July 24, 2019
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Hangzhou Standard Mayo Industrial Co., Ltd.
_____
Serial No. 87883128
_____
John Alumit of Alumit IP
for Hangzhou Standard Mayo Industrial Co., Ltd.

Eliana Torres, Trademark Examining Attorney, Law Office 110,
Chris A.F. Pedersen, Managing Attorney.
_____
Before Adlin, Goodman and English, Administrative Trademark Judges.
Opinion by Adlin, Administrative Trademark Judge:
Applicant Hangzhou Standard Mayo Industrial Co., Ltd. seeks registration of the
mark shown below

for “Balls for games; Body-building apparatus; Body-training apparatus; Electric
action toys; Exercise machines; Sport balls; Exercise equipment, namely, chest
expanders; Gaming equipment, namely, playing cards, chips, gaming tables and
This Opinion is Not a
Precedent of the TTAB
Serial No. 87883128
2
gaming cloths.”1 The Examining Attorney refused registration under Section 2(d) of
the Trademark Act on the ground that Applicant’s mark so resembles the registered
mark GYMBOSS, in standard characters, for “personal fitness devices, namely timers
used for interval timing in sports training,”2 as to be likely to cause confusion. After
the refusal became final, Applicant appealed and Applicant and the Examining
Attorney filed briefs.
I. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record bearing on the likelihood of confusion. In re E.I. du Pont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth
factors to be considered); see also In re Majestic 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 similarities between
the goods. 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.”).
A. The Marks
The marks are legally identical, because Registrant’s mark is the term GYMBOSS
in standard characters, while Applicant’s mark is the same exact term presented in

1 Application Serial No. 87883128, filed April 18, 2018 under Section 44(e) of the Trademark
Act, based on a Chinese registration.
2 Registration No. 3080851, issued April 11, 2006; renewed.
Serial No. 87883128
3
a stylized format. Indeed, Registrant could display its standard character mark in
any lettering style, color or font, including in the same font and style as Applicant
displays its mark. In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1748
(Fed. Cir. 2017) (“Symbolic does not, and cannot, dispute that the mark, I AM in
standard character form, and the registrants’ marks, I AM in standard character,
typed, or stylized form, are pronounced the same way and, at a minimum, legally
identical.”); In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909 (Fed. Cir.
2012); Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253,
1258-59 (Fed. Cir. 2011); SquirtCo v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939
(Fed. Cir. 1983) (“[T]he argument concerning a difference in type style is not viable
where one party asserts rights in no particular display. By presenting its mark
merely in a typed drawing, a difference cannot legally be asserted by that party.”); In
re Strategic Partners Inc., 102 USPQ2d 1397, 1399 (TTAB 2012). This factor not only
weighs heavily in favor of finding a likelihood of confusion, but also reduces the degree
of similarity between the goods required to support a finding of likelihood of
confusion. In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993);
Time Warner Ent. Co. v. Jones, 65 USPQ2d 1650, 1661 (TTAB 2002); and In re Opus
One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001).
B. The Goods, Channels of Trade and Classes of Consumers
Applicant’s and Registrant’s goods have an obvious relationship, because
Applicant’s body-building and training apparatus and exercise equipment, and
Registrant’s fitness timers for sports training, are types of fitness/exercise equipment.
Serial No. 87883128
4
Perhaps more importantly, Applicant’s and Registrant’s identified goods could be
used together, in a complementary way, in that consumers could use Registrant’s
fitness timers to time their intervals when working out on Applicant’s exercise
machines and equipment. Complementary goods, such as Applicant’s and
Registrant’s in this case, are often found to be related. See In re Martin’s Famous
Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984); Gen. Mills,
Inc. v. Fage Dairy Processing Indus. SA, 100 USPQ2d 1584, 1597-98 (TTAB 2011),
judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014); In re Toshiba
Med. Sys. Corp., 91 USPQ2d 1266, 1272 (TTAB 2009).
Furthermore, the Examining Attorney has established that the same marks are
used for the types of goods Registrant offers on the one hand and the types of goods
Applicant offers on the other. For example, Champion Sports is the source of
CHAMPION SPORTS soccer balls, which fall within Applicant’s identification of
“sports balls,” and CHAMPION SPORTS stopwatches, which encompass Registrant’s
“timers for interval training”:

Serial No. 87883128
5
p
August 7, 2018 Office Action TSDR 22, 25. Rogue Fitness uses ROGUE for exercise
machines and equipment on the one hand and interval timers on the other:

Serial No. 87883128
6
September 14, 2008 Office Action TSDR 28, 33. Perform Better and Title Boxing offer
interval timers on the one hand and body-training apparatus of various types on the
other, under their PB and TITLE marks, respectively:

Id. TSDR 20, 24, 45, 47 (printouts from “performbetter.com” and “titleboxing.com”).
This evidence, combined with the complementary nature of Applicant’s and
Registrant’s fitness and exercise-focused goods, establishes that the goods are
related. This factor therefore also weighs in favor of finding a likelihood of confusion.
Furthermore, the Examining Attorney has established that the channels of trade
and classes of consumers for fitness timers and exercise equipment overlap, as these
goods are offered by the same retail sources on the same websites, including those of
Serial No. 87883128
7
Gopher, Perform Better, Rogue, Sportsmith, Title Boxing, X Training Equipment,
AAE Sports and Academy Sports Outdoors. September 14 2018 Office Action TSDR
7-49 (printouts from “gopherperformance.com,” “performbetter.com,”
“roguefitness.com,” “sportsmith.net” and “titleboxing.com”); November 12, 2018
Denial of Reconsideration TSDR 4-6, 11-21, 22-28 (printouts from
“xtrainingequipment.com,” “academy.com” and “aaesports.com”). These factors also
weigh in favor of finding a likelihood of confusion.
Applicant itself concedes that some third parties sell both Applicant’s and
Registrant’s goods under the same marks, but argues that this is uncommon. 4
TTABVUE 5 (Applicant’s Appeal Brief at 4). Applicant bases this argument on a large
number of website printouts showing third parties which offer Applicant’s goods but
not Registrant’s, or vice versa, October 23, 2018 Request for Reconsideration, as well
as a list of TESS search results along with 17 third-party registrations. August 29,
2018 Office Action response TSDR 5-38. Some of the third-party registrations cover
goods of the types identified in both the involved application and cited registration,
but most only cover only one or the other, rather than both.
Applicant’s argument is not well-taken. Applicant’s search methodology would not
uncover all third-party registrations which would shed light on whether Applicant’s
and Registrant’s goods are related; in fact, it is likely that Applicant’s search method
would only uncover a small fraction of the relevant registrations. Perhaps more
importantly
Applicant’s evidence does not consist of third-party
registrations issued for the same or similar marks to
Serial No. 87883128
8
different parties for the goods of applicant and registrant.
It simply consists of registrations that list one of
applicant’s goods but do not include any goods that are in
the cited registration, or registrations that list one of the
goods in the cited registration but do not include any of
applicant’s identified goods. We give this evidence much
less weight. There is no requirement for goods to be found
related that all or even a majority of the sources of one
product must also be sources of the other product.
Therefore, evidence showing only that the source of one
product may not be the source of another product does not
aid applicant in its attempt to rebut the evidence of the
examining attorney. Second, the mere fact that some goods
are not included in a registration’s identification of goods
does not establish that the owner of the mark has not
registered the mark for those goods in another registration
since, for example, the registrant may have begun using
the mark on those goods at a later date. Third, the law
recognizes that trademark owners have different marks
that are used as a house mark, a mark for a line of
products, and a mark for specific items. It is, therefore, to
be expected that many registrations for marks would not
cover all of a party’s goods and services.

In re G.B.I. Tile and Stone, Inc., 92 USPQ2d 1366, 1370 (TTAB 2009).3
II. Conclusion
Because the marks are legally identical, the goods related and the channels of
trade and classes of consumers overlap, confusion is likely.

Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed.

3 Because the Examining Attorney’s argument that Applicant’s goods are within Registrant’s
“normal fields of expansion” is not supported by any evidence, we have not relied on it. 6
TTABVUE 5-6 (Examining Attorney’s Appeal Brief at 5-6). We treat that factor as neutral.