Haso Ltd.

Trademark Trial and Appeal Board

Sep 25, 2018

No. 79204061 (T.T.A.B. Sep. 25, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 25, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Haso Ltd.
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Serial No. 79204061
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Molly B. Markley of Young Basile Hanlon & MacFarlane P.C.,
for Haso Ltd.
Thomas Young, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
_____

Before Taylor, Wolfson and Larkin,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Haso Ltd. (“Applicant”) seeks registration on the Principal Register of the mark
MICRO FIN DRY (in the stylized format shown below) for, as amended,
Evening dresses; school uniforms; children’s wear, namely,
shirts, skirts, shorts, dresses and pants; liveries; clothing,
namely, jackets; jogging pants; sweatpants; suits; skirts;
trousers; smocks; formal wear, namely, tuxedos and dinner
jackets; coats; raincoats; cardigans; sweaters; vests; shirts;
nightgowns; negligees; nightwear; pajamas; bathrobes;
disposable underwear; underwear; undershirts;
underpants; slips; panties; brassieres; petticoats; sash
bands for kimono (obi); bustle holder bands for obi (obiage);
undershirts for kimonos (koshimaki); undershirts for
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kimonos (juban); full-length kimonos (nagagi); short
overcoat for kimono (haori); string fasteners for haori
(haori-himo); pleated skirts for formal kimonos (hakama);
sleep masks; aprons; socks; stockings; headgear for wear,
namely, hats and caps; garters; sock suspenders;
suspenders; waistbands; clothing, namely, belts; footwear;
insoles; masquerade costumes; clothing for sports, namely,
jerseys, shorts, and uniforms; ski suits for competition;
clothing, namely, headbands; uniforms; clothing, namely,
wristbands; wet suits; shoes; sports shoes; gymnastic shoes
in International Class 25.1

The application includes the following description: “The mark consists of the stylized
wording “MICRO FIN DRY,” and “[c]olor is not claimed as a feature of the mark.” The
word DRY has been disclaimed as required by the Examining Attorney.
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. 1052(d), on the ground that it is
likely to cause confusion with the marks in Registration No. 1991482,2 MICRODRY
(in typed format),3 for “Footwear inner lining fabric material sold as a component part

1 Application Serial No. 79204061 was filed on November 21, 2016, pursuant to Section 66(a)
of the Trademark Act, 15 U.S.S. § 1141f(a), based on International Registration No. 1336520,
registered November 21, 2016. The application originally included goods classified in
International Class 5, which were not subject to the refusal and which have been divided
from this application.

2 Registered August 6, 1996; renewed.
3 “Prior to November 2, 2003, ‘standard character’ drawings were known as ‘typed’ drawings
… . A typed mark is the legal equivalent of a standard character mark.” TRADEMARK
MANUAL OF EXAMINING PROCEDURE (“TMEP”) 807.03(i) (Oct. 2017).
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of footwear” in International Class 25, and Registration No. 3547526,4 MICRODRY
(in standard characters) for, in relevant part, “Articles of clothing, namely bathrobes,
nightwear and body wraps”5 in International Class 25. The registrations are owned
by different entities.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. Both Applicant and the Examining
Attorney filed briefs.6 We affirm the refusal to register.
I. Applicable Law
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of likelihood of confusion under § 2(d) is based on an
analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177

4 Registered December 16, 2008; Section 8 and 15 Affidavit accepted and acknowledged.
5 The registration includes additional goods in International Class 24; however, the refusal
is based only on the Class 25 goods listed above.
6 Applicant submitted with its appeal brief evidence that appears to be duplicative of the
evidence previously submitted during prosecution. We need not and do not give this
redundant evidence any consideration. To the extent that any of the evidence submitted with
Applicant's appeal brief was not previously submitted during prosecution, it is untimely and
will not be considered on that basis. See Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d);
TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) §§
1203.02(e) and 1207.01 and authorities cited therein.

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USPQ 563, 567 (CCPA 1973). 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 (CCPA 1976). We discuss below these and other relevant factors.
See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947
(Fed. Cir. 2006) (even within du Pont list, only factors that are “relevant and of
record” need be considered).
II. Discussion
A. Relatedness of the Goods, Channels of Trade and Classes of Consumers

We first consider the second and third du Pont factors regarding the relatedness
of the goods and channels of trade. Applicant’s goods are in-part identical to the goods
identified in cited registration No. 3547536 insofar as they both include “bathrobes
and nightwear.” Given the in-part identical “bathrobes and nightwear,” we need not
discuss the similarity of all of Applicant’s goods because it is sufficient for a finding
of likelihood of confusion if relatedness is established for any item encompassed by
the identification of goods within a particular class in the application. In re Aquamar,
Inc., 115 USPQ2d 1122, 1126, n.5 (TTAB 2015); Tuxedo Monopoly, Inc. v. Gen. Mills
Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Apple Computer v.
TVNET.Net, Inc., 90 USPQ2d 1393, 1398 (TTAB 2007).
Nonetheless, we note that to support the relatedness of the goods, the Examining
Attorney made of record web pages from the websites of various entities, e.g.,
Bluebella, ASOS, Agent Provacateur, Victoria’s Secret, Gap, Marks & Spencer, J
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Crew and Lands End showing the same mark used in connection with goods of the
types identified in Applicant’s application and cited Registration No. 3547525, e.g.,
shirts, jackets, pants, nightwear and shoes.7
In addition, we find that the “footwear, shoes, sport shoes, gymnastic shoes and
insoles” are related to the “footwear inner lining fabric material sold as a component
part of footwear” recited in Registration No. 1991482 on the basis of evidence from
the websites of manufacturers and retailers of footwear demonstrating that these
entities commonly produce footwear that features lining as an integral component.8
For example, Davenport™ shoes produced by Columbia®, feature Techlite® midsole
lining for promotion comfort and cushioning and the “Jordan Ultra.Fly 2 – Men’s”
tennis shoe features “Lightweight Injected Phylon foam [which] provides plush
cushioning and a smooth, stable ride.” This evidence demonstrates that footwear
lining is commonly used in connection with the footwear itself and is promoted as a
key feature thereof. Thus, consumers encountering footwear and footwear lining sold
as an integral component thereof are likely to presume that those goods originate
from the same entity when sold under similar marks.
We thus find the goods in-part identical and closely related for purposes of our
likelihood of confusion analysis. Applicant does not argues to the contrary and, in
fact, its brief is silent on the issue.

7 June 13, 2017 Office Action, TSDR 8-28, August 2, 2017 Office Action, TSDR 12-16 and 18-
152. We have not considered the webpages from Debenhams because the pricing is in foreign
currency and there is no indication that the items are available to consumers in the United
States. The TSDR citations are to the downloadable .pdf format.
8 August 2, 2017 Office Action, TSDR 154-172.
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Furthermore, because the goods are identical in-part, the channels of trade and
classes of purchasers for such goods are considered to be the same. In re Yawata Iron
& Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968); Am. Lebanese Syrian
Associated Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028
(TTAB 2011). 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). As such, the channels of trade and classes of purchasers at a
minimum overlap.
Accordingly, we find that the du Pont factors of the relatedness of the goods,
channels of trade and classes of purchasers favor a finding of likelihood of confusion.
B. Strength of the Cited Mark(s)
Under the sixth du Pont factor, we consider “[t]he number and nature of similar
marks in use on similar goods.” du Pont, 177 USPQ at 567. In this regard, the Federal
Circuit has stated that evidence of the extensive registration and use of a term by
others can be “powerful” evidence of weakness. Jack Wolfskin Ausrustung Fur
Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116
USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC, 794
F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015).
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Applicant has made of record various third-party registrations for either MICRO-
formative9 or DRY-formative marks10 in the clothing field, arguing that the term
MICRO is a weak indicator of source and the term DRY is descriptive. Therefore,
Applicant urges that the cited mark be given a narrow scope of protection and that
its applied-for mark be allowed to peacefully co-exist with the cited mark. A chart of
the “MICRO – formative marks reproduced from Applicant’s brief follows:

9 July 13, 2017 Response to Office Action, TSDR 55-111.
10 February 2, 2018 Request for Reconsideration, TSDR 19-77. Applicant made of record 30
registrations for marks that include the term “dry” in combination with other matter in the
clothing industry, but did not specifically reference these registrations in its brief. A review
of the registrations, however, show than none of their subject marks include the term
“MICRO.”
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Applicant particularly argues with regard to the MICRO-formative marks that the
registrations shown above co-exist for clothing and related goods due to minor
differences in the marks, and that its “distinct” combination of MICRO FIN should
be registered in light of these other MICRO-formative marks.
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These third-party registrations do not persuade us that the cited mark is so weak
due to common usage of MICRO-derivative, or DRY-derivative marks for that matter,
that confusion is not likely between Applicant’s mark and the cited mark, because
none of the marks in the third-party registrations include both the terms MICRO and
DRY. See In re Mucky Duck Mustard, Co., 6 USPQ2d 1467, 1469 (TTAB 1988) (finding
the applicant’s argument that “Mucky Duck” should be entitled to a narrow scope of
protection to be unpersuasive because the record contained no evidence of third-party
use of the expression). Although, as Applicant points out, the combination of the
terms FIN and MICRO may be unique in the clothing field, so too, and more
importantly, are the combination of the terms MICRO and DRY. The only marks
registered with both terms in common are the subject of the two cited registrations.
These two third-party registrations do not evidence such a widespread and significant
use the terms MICRO and DRY, together, in the clothing and related industries that
we can conclude that the cited mark is so weak that the public would be able to
distinguish the source of Applicant’s goods from those of Registrants’ by the
differences in their respective marks. Cf. Jack Wolfskin, 116 USPQ2d at 1136 n.2 (at
least 14 relevant third-party uses or registrations of record); Juice Generation, 115
USPQ2d at 1672 n.1 (at least 26 relevant third-party uses or registrations of record);
see also In re USA Warriors Ice Hockey Program, Inc., 122 USPQ2d 1790, 1793 (TTAB
2017); In re Broadway Chicken Inc., 38 USPQ2d 1559 (TTAB 1996) (“Broadway” is
weak for restaurant services based on evidence that hundreds of restaurants and
Serial No. 79204061
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eating establishments use Broadway as a trademark or trade name). Accordingly,
this du Pont factor is neutral.
Nonetheless, even if we attribute some degree of weakness to the term
MICRODRY when used in the clothing industry, even weak marks are entitled to
protection against registration of a similar mark for, as discussed below, in-part
identical and otherwise related goods. See In re FabFitFun, Inc., 127 USPQ2d 1670,
1676 (TTAB 2018) (citing see China Healthways Inst., Inc. v. Wang, 491 F.3d 1337, 83
USPQ2d 1123, 1125 (Fed. Cir. 2007).
C. Similarity/Dissimilarity of the Marks
We now turn to the du Pont likelihood of confusion factor focusing on the similarity
or dissimilarity of the marks, keeping in mind that where, as here, the goods are in-
part identical, the degree of similarity necessary to find likelihood of confusion with
respect to such goods need not be as great as where there is a recognizable disparity
between the goods. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012); Century 21 Real Estate Corp. v. Century Life of
Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen Enter. Inc. v.
Rind, 85 USPQ2d 1104, 1108 (TTAB 2007).
We compare the marks, as we must, in their entireties in terms of sound,
appearance, meaning and commercial impression. See Palm Bay Imps., Inc. v. Veuve
Clicquot Ponsardin En 1722, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005).
“The proper test is not a side-by-side comparison of the marks, but instead ‘whether
the marks are sufficiently similar in terms of their commercial impression’ such that
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persons who encounter the marks would be likely to assume a connection between
the parties.” Coach Servs. Inc., 101 USPQ2d at 1721. See also San Fernando Elec.
Mfg. Co. v. JFD Elec. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem.,
972 F.2d 1353 (Fed. Cir. 1992). The proper focus is on the recollection of the average
customer, who retains a general rather than specific impression of the marks. L’Oreal
S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v.
Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott
Paper Co., 190 USPQ 106, 108 (TTAB 1975). Here, the average customer includes
members of the general public seeking clothing and footwear items.
Applicant’s mark and the cited mark MICRO DRY are similar in appearance
and sound to the extent that they each include the term “MICRO” as the first portion
of the mark and the word “DRY” as the last. Because it is the first word in each mark,
consumers will most likely focus the word MICRO. See Palm Bay Imports, 73
USPQ2d at 1692 (“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); Presto Products Inc. v. Nice-Pak
Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark
which is most likely to be impressed upon the mind of a purchaser and remembered”).
As to connotation, in the context of the goods, on this record the wording “micro dry”
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appears to suggest a meaning of clothing with “micro”11 or small fibers and quick or
stay dry properties. Contrary to Applicant’s contention, we do not find that the
addition of the term “FIN” to its mark distinguishes it from the cited mark. Rather,
because FIN is embedded between the two common terms, it enhances the
connotation of the remaining terms in Applicant’s mark. Thus, consumers will likely
view Applicant’s mark as a variant mark identifying different lines of Registrants’
goods.
In making our finding, we are simply unpersuaded by Applicant’s contention that
the term FIN dominates the cited mark. Although the definitions of the term made
of record by Applicant appear to confirm Applicant’ contention that the word “FIN” is
arbitrary with respect to Applicant’s identified goods, likelihood of confusion is not
necessarily avoided between otherwise confusingly similar marks merely by adding
or deleting other distinctive matter. If an important portion of both marks is the
same, then the marks may be confusingly similar notwithstanding some
differences. See. e.g., Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261,
1266, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002) (finding that, even though applicant's
mark PACKARD TECHNOLOGIES, with “TECHNOLOGIES” disclaimed, does not
incorporate every feature of opposer’s HEWLETT PACKARD marks, a similar overall

11 “Micro” is defined, in part, in Merriam Webster’s on-line dictionary as “very small.”
https://www.merriam-webster.com/dictionary/micro, last accessed September 4, 2018. The
Board may take judicial notice of dictionary definitions, including online dictionaries that
exist in printed format or have regular fixed editions. In re Cordua Rests. LP, 110 USPQ2d
1227, 1229 n.4 (TTAB 2014); Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031,
1038 n.14 (TTAB 2010); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
Serial No. 79204061
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commercial impression is created); In re Toshiba Med. Sys. Corp., 91 USPQ2d
1266, 1271 (TTAB 2009) (holding VANTAGE TITAN for MRI diagnostic apparatus,
and TITAN for medical ultrasound device, likely to cause confusion, noting that the
marks are more similar than they are different and that the addition of applicant's
“product mark,” VANTAGE, to the registered mark would not avoid confusion); In re
U.S. Shoe Corp., 229 USPQ 707, 709 (TTAB 1985) (holding CAREER IMAGE
(stylized) for clothing and retail women's clothing store services, and CREST
CAREER IMAGES (stylized) for uniforms, likely to cause confusion, noting that
CAREER IMAGE would be perceived by consumers as a shortened form of CREST
CAREER IMAGES). We find the situation here similar as FIN merely modifies or
enhances the commercial impression engendered by the “MICRO … DRY” portion of
Applicant’s mark.
We are also unpersuaded by Applicant’s argument that the term FIN
distinguishes and substantially changes the commercial impression from that
imparted by the cited mark due to the stylization of its mark, particularly its larger
and prominent display. Here, both cited marks are in standard characters (or the
legal equivalent) and thus not limited to any particular depiction. The rights
associated with a standard character mark reside in the wording and not in any
particular display. In re RSI Sys. LLC, 88 USPQ2d 1445, 1448 (TTAB 2008); In re
Pollio Dairy Prods. Corp., 8 USPQ2d 2012, 2015 (TTAB 1988); TMEP § 1207.01(c)(iii).
We must consider both standard character marks “regardless of font style, size, or
color,” Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253,
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1259 (Fed. Cir. 2011), including displays utilizing the font and lettering size present
in Applicant’s mark. See In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1186
(TTAB 2018). When so viewed, neither font size nor placement of the term FIN
between the two common terms is sufficient to alter the overall commercial
impression imparted by the respective marks.
As Applicant points out, there are differences between the marks in terms of
appearance and sound when viewed on a side-by-side basis, but we find that when
considered in their entireties, and against the backdrop of the absence of other
clothing marks containing both MICRO and DRY, Applicant’s mark and each
of the registered MICRODRY marks are similar in appearance, sound and
connotation and convey a similar commercial impression, and those similarities
outweigh the differences identified by Applicant.
The factor of the similarity of the marks thus favors a finding of likelihood of
confusion.
D. Conclusion
When we consider the record, the relevant likelihood of confusion factors, and all
of the arguments and evidence relating thereto, including those arguments and
evidence not specifically addressed in this decision, the marks are sufficiently similar
for confusion to be likely when used in connection with partially identical goods, and
we conclude that prospective purchasers familiar with the registered mark
MICRODRY for “[f]ootwear inner lining fabric material sold as a component part of
footwear” (Registration No. 1991482) and “[a]rticles of clothing, namely bathrobes,
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nightwear and body wraps” (Registration No. 3547526) would be likely to believe,
upon encountering Applicant’s substantially similar mark for the identified
clothing and related items, that such goods emanate from, or are sponsored by or
affiliated with, the same source.
Decision: The refusal to register Applicant’s mark under Section 2(d) is affirmed.