Harbro, LLC

Trademark Trial and Appeal Board

Feb 1, 2005

No. 78175956 (T.T.A.B. Feb. 1, 2005)

Mailed:
February 1, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Harbro, LLC
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Serial No. 78175956
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Timothy A. Flory of Van Dyke, Gardner, Linn & Burkhart, LLP
for Harbro, LLC.

Florentina Blandu, Trademark Examining Attorney, Law Office
112 (Janice O’Lear, Managing Attorney).
_______

Before Seeherman, Quinn and Rogers, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Harbro, LLC applied to register EXTREME WOODLAND as a
trademark for the following goods, as amended:
Hunting clothing and accessories,
namely, headwear, hats, neckwarmers,
rainwear, coats, jackets, vests,
shirts, gloves, pants, belts,
suspenders, underwear, footwear, socks,
shoes and boots.1

1 Application Serial No. 78175956, filed October 18, 2002, and
asserting a bona fide intention to use the mark in commerce.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 78175956
2
A final refusal of registration issued on two bases.
The Examining Attorney asserted that applicant’s mark, if
used on the identified goods, is likely to cause confusion
with the mark XTREMELAND.COM, registered for “wearing
apparel, namely, pants, shirts, hats, neckties, coats,
gloves, footwear, swimwear, belts, scarves, and wrist
bands.”2 Section 2(d) of the Trademark Act, 15 U.S.C.
1052(d). The Examining Attorney also required, pursuant to
Section 6 of the Trademark Act, 15 U.S.C. 1056, that
applicant disclaim exclusive rights to the word WOODLAND
because it is merely descriptive of the goods.
After the final refusal of registration issued,
applicant filed a request for reconsideration in which it
agreed to the required disclaimer. Although the disclaimer
was accepted, the Examining Attorney maintained the refusal
of registration based on Section 2(d) of the Trademark Act.
Applicant thereupon filed the instant appeal.
The appeal has been fully briefed. Applicant did not
request an oral hearing.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d

2 Registration No. 2438262, issued March 27, 2001.
Ser No. 78175956
3
1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic
Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003). In any likelihood of confusion analysis,
two key considerations are the similarities between the
marks and the similarities between the goods and/or
services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). See also, In
re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531
(Fed. Cir. 1997).
Turning first to the goods, applicant’s goods are
identified as various items of hunting clothing and
accessories. They include shirts, belts, shoes and boots,
which are identical to the goods identified in the cited
registration. Although the registrant’s goods are not
identified as being specifically for hunting, we see no
reason why goods such as those listed above could not be
used by hunters. To this extent, the goods must be
considered legally identical. Moreover, hunters also buy
clothes for everyday use. Thus, both applicant’s goods and
the registrant’s goods may be encountered by and purchased
by the same classes of consumers. Further, because
applicant’s identification of goods and the registrant’s
identification include the same types of items (in
particular, in addition to the foregoing, hats, coats,
Ser No. 78175956
4
jackets, gloves and pants), consumers are likely to
believe, if they are sold under the same or a confusingly
similar mark, that they emanate from a single source.
This brings us to a consideration of the marks,
keeping in mind that when marks would appear on virtually
identical goods, as they are in part here, the degree of
similarity necessary to support a conclusion of likely
confusion declines. Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700
(Fed. Cir. 1992). Applicant has pointed out the various
differences in the marks: registrant’s mark spells XTREME
without the initial “E”, while in applicant’s mark the word
is spelled in the normal manner; registrant’s mark ends
with “.COM”; and applicant’s mark has the word WOODLAND
while registrant’s mark has just LAND. Although these
differences are apparent when the marks are compared side-
by-side, 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
Corporation, 206 USPQ 255 (TTAB 1980). Here, we find that
the marks a convey very similar overall commercial
impression.
Ser No. 78175956
5
Consumers are not likely to remember the slight
difference in the spelling of EXTREME/XTREME. Further,
those who only hear the mark, either through word-of-mouth
or radio advertising, will not even be aware of this
difference. Nor are consumers likely to accord much
source-indicating significance to the element “.COM” in the
registrant’s mark since this suffix is, as applicant points
out, a readily recognized term indicating an Internet
address. Although we do not discount this element in our
comparison of the marks, it is well established that there
is nothing improper in stating that, for rational reasons,
more or less weight has been given to a particular feature
of a mark. See In re National Data Corp., 753 F.2d 1056,
224 USPQ 749 (Fed. Cir. 1985). Consumers are likely to
assume that the registrant’s mark and applicant’s mark are
variants of each other, and may conclude that the .COM mark
of registrant is used to indicate goods of applicant which
are sold over the Internet.
As for the fact that applicant’s mark contains the
element WOODLAND, consumers who are familiar with the
registrant’s mark are not as likely to notice or regard the
additional WOOD portion of the word because the elements
that precede it (EXTREME/XTREME) and the element that
follows it (LAND) are virtually the same in both marks.
Ser No. 78175956
6
Moreover, since WOODLAND is descriptive of a camouflage
pattern, consumers are likely to assume that this term has
been used because the particular clothing is designed for
hunters. Again, they will view applicant’s mark as a
variant of the registrant’s mark, rather than as a mark
identifying a separate source.
Applicant has argued that the elements EXTREME and
LAND are weak because they have been registered by a number
of third parties.3 Although there are third-party marks
that contain the individual elements EXTREME and LAND,
e.g., EXTREME, XTREME PEAK, EXTREME ELEMENTS, PLANET
XTREME, WHITETAIL EXTREME, BIG LAND, TV LAND, KID LAND and
LAND ROVER, applicant has pointed to no other registrations
which contain both elements. Thus, we do not agree with
the contention that the registered mark is entitled to only
a limited scope of protection. Moreover, notwithstanding
the issuance of these other registrations, they are unlike
applicant’s mark, which contains both of the elements
EXTREME/XTREME and LAND that are in the registered mark,
and depicts them in the same order.

3 Applicant has only referred to the marks in its responses to
Office actions, and has not made the registrations of record by
submitting copies taken from the USPTO’s records. However,
because the Examining Attorney has treated the registrations as
being of record, we will accept the information as provided by
applicant in its responses.
Ser No. 78175956
7
Applicant has also pointed out that its application
for EXTREME WETLANDS for the same goods as those at issue
herein has been approved for publication. We do not know
why that action was taken, but the Board is not bound by
decisions of Trademark Examining Attorneys. We must make
our decision based on the record in the appeal before us.
Finally, we follow the well-established principle
that, to the extent there is any doubt on the issue of
likelihood of confusion, it must be resolved against the
newcomer or in favor of the prior user or registrant. In
re Pneumatiques, Caoutchouc Manufacture et Plastiques
Kleber-Colombes, 487 F.2d 918, 179 USPQ 729 (CCPA 1973).
Decision: The refusal of registration is affirmed.