Hits From the Bong, Inc.v.Javen Mitchell

Trademark Trial and Appeal Board

Jul 26, 2017

No. 91224802 (T.T.A.B. Jul. 26, 2017)

This Opinion is Not a
Precedent of the TTAB

Mailed: July 26, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Hits From the Bong, Inc.
v.
Javen Mitchell
_____

Opposition No. 91224802
_____

James D. Weinberger and Emily Weiss of Fross Zelnick Lehrman & Zissu PC for
Hits From the Bong, Inc.

Javen Mitchell, pro se.
_____

Before Bergsman, Hightower, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Javen Mitchell (“Applicant”), appearing pro se, seeks registration of the mark
shown below on the Principal Register for “Entertainment services by a musical artist
and producer, namely, musical composition for others and production of musical
sound recordings; Entertainment services in the nature of recording, production and
post-production services in the field of music; Entertainment services in the nature
of live music performances; Entertainment, namely, live music concerts;
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Entertainment, namely, live performances by musical bands; Music production
services,” in International Class 41.1

Hits From the Bong, Inc. (“Opposer”) has opposed registration on the basis of
claims of priority and likelihood of confusion under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), based upon Registration No. 4662290 of the mark DR.
GREENTHUMB in standard characters for “musical sound recordings; downloadable
musical sound recordings; audiovisual recordings featuring music and musical
performances; downloadable audiovisual recordings featuring music and musical
performances,” in International Class 9,2 and alleged common law use of that mark
and related marks; and a false suggestion of a connection with Applicant under
Section 2(a) of the Trademark Act, 15 U.S.C. § 1052(a).

1 Application Serial No. 86514008 was filed on January 26, 2015 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), on the basis of Applicant’s claim of first use and first
use of the mark in commerce on January 1, 2012. The mark is described in the application as
“consist[ing] of a design that depicts a skull wearing a crown. Directly below is the wording
‘Greene Thumb’ in stylized font.”
2 Opposer’s pleaded registration issued on December 30, 2014.
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Only Opposer submitted evidence and filed a brief.3 We sustain the opposition on
the basis of Opposer’s claim under Section 2(d), and do not reach Opposer’s claim
under Section 2(a).4
I. Evidentiary Record
The record consists of the pleadings, the file history of Applicant’s application, by
operation of Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1), and two Notices of
Reliance filed during Opposer’s testimony period. 5 TTABVUE; 6 TTABVUE.
Opposer also made its pleaded registration of record by attaching as Exhibit A to its
Notice of Opposition a printout from the Patent and Trademark Office’s Trademark
Status & Document Retrieval database showing its current status and title. 1
TTABVUE 8-11. Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1).
Opposer filed its Notice of Opposition on November 1, 2015. 1 TTABVUE.
Applicant’s Answer, filed on December 14, 2015, 4 TTABVUE, denied most of the
material allegations of the Notice of Opposition, but also contained amplifications of
certain denials, 4 TTABVUE 3-5 (Answer ¶¶ 14, 16), the purported affirmative

3 Only Opposer was required to do so. See Trademark Rule 2.128(a)(1), 37 C.F.R. § 2.128(a)(1).
Opposer has the burden of proving that Applicant is not entitled to a registration even in the
absence of contrary evidence or argument. Threshold TV, Inc. v. Metronome Enters., Inc., 96
USPQ2d 1031, 1040 (TTAB 2010).
4 “Like the federal courts, the Board has generally used its discretion to decide only those
claims necessary to enter judgment and dispose of the case. . . . [T]he Board’s determination
of registrability does not require, in every instance, decision on every pleaded claim.”
Multisorb Tech., Inc. v. Pactiv Corp., 109 USPQ2d 1170, 1171 (TTAB 2013) (citations
omitted). Opposer itself argues that “this opposition should be sustained in its entirety
without the need to reach the issue of false suggestion under Section 2(a).” 8 TTABVUE 31.
Opposition No. 91224802
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defenses of laches and unclean hands, 4 TTABVUE 5 (Answer ¶ 20),5 and a number
of paragraphs that did not admit or deny specific allegations in the Notice of
Opposition, but made affirmative statements or indirectly referenced various
allegations. 4 TTABVUE 5-6 (Answer ¶¶ 21-28).6
Opposer filed two Notices of Reliance during its testimony period. The first made
of record the entire file history of Opposer’s pleaded Registration No. 4662290, 5
TTABVUE, while the second covered 25 exhibits. The first 15 exhibits are “Internet
printouts,” which Opposer claims “are relevant to show the biography and history of
Opposer’s principal and the use, promotion, notoriety, and strength of Opposer’s DR
GREENTHUMB mark.” 6 TTABVUE 2. The next four are “printed publications
consisting of online and print articles,” which Opposer claims “are relevant to show
the use, promotion, notoriety, and strength of Opposer’s DR. GREENTHUMB mark.”
6 TTABVUE 4. The final six are “Internet printouts from social media websites, which
are relevant to show the use, promotion, notoriety, and strength of Opposer’s DR.
GREENTHUMB mark.” 6 TTABVUE 4. We describe this evidence below.
Internet Printouts From Websites
● September 30, 2016 printouts from the website at wikipedia.com pertaining to
the performer identified as “B-Real” (Ex. HB2), the song Dr. Greenthumb by

5 These affirmative defenses are deemed waived because Applicant did not pursue them
further after including them in his Answer. See, e.g., Harry Winston, Inc. v. Bruce Winston
Gem Corp., 111 USPQ2d 1419, 1422 (TTAB 2014).
6 Where the additional statements refer to facts pleaded by Opposer and do not dispute them,
or where they affirmatively assert facts, we deem them to be admissions of those facts by
Applicant. We discuss below the evidentiary significance of some of these admissions and
Applicant’s amplifications of certain denials in our analysis of Opposer’s Section 2(d) claim.
Opposition No. 91224802
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the musical group Cypress Hill (Ex. HB3), the Cypress Hill group (Ex. HB4),
and the album Skull & Bones by Cypress Hill (Ex. HB5), 6 TTABVUE 6-27;
● A September 30, 2016 printout of a biography of “B Real” from the website at
billboard.com, 6 TTABVUE 28-31 (Ex. HB6);
● A September 30, 2016 printout from the website at azlyrics.com of the lyrics to
the song Dr. Greenthumb, 6 TTABVUE 32-35 (Ex. HB7);
● September 30, 2016 printouts from the website at musixmatch.com of the lyrics
of the songs Stix & Stones, Only When I’m High, Mile High, Dabs, Start a Fire,
and Money Up on It, 6 TTABVUE 36-87 (Ex. HB8);
● A September 30, 2016 printout from the website at hotnewhiphop.com, 6
TTABVUE 88-90 (Ex. HB9);
● September 30, 2016 and October 14, 2016 printouts from the website at
youtube.com, including from a YouTube channel designated BREALTV, 6
TTABVUE 91-102 (Ex. HB10);
● A September 30, 2016 printout from the website at dubcnn.com, 6 TTABVUE
103-107 (Ex. HB11);
● September 30, 2016 and October 5, 2016 printouts from the website at
cypresshil.com, 6 TTABVUE 108-113 (Ex. HB12);
● October 5, 2016 printouts from the website at brealtv.com displaying
screenshots from what are described as archived episodes of The Dr.
Greenthumb Show, 6 TTABVUE 114-249 (Ex. HB13);
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● An October 5, 2016 printout from the website at livemixtapes.com, 6
TTABVUE 250-253 (Ex. HB14);
● An October 5, 2016 printout from the website at soundcloud.com listing various
songs, 6 TTABVUE 254-256 (Ex. HB15); and
● October 5, 2016 printouts from iTunes containing a biography of the group
Cypress Hill, a listing of various songs, and thumbnail photographs from
various music videos, 6 TTABVUE 257-263 (Ex. HB16).
Internet Printouts From Social Media Pages
● An October 5, 2016 printout from the website at facebook.com of the B-Real of
Cypress Hill page, 6 TTABVUE 279-300 (Ex. HB21);
● October 14, 2016 printouts from the website at facebook.com of the Breal TV
page, 6 TTABVUE 301-343 (Ex. HB22);
● An October 5, 2016 printout of the Breal account on the website at
instagram.com, 6 TTABVUE 344-346 (Ex. HB23);
● An October 5, 2016 printout of the BREAL.TV account on the website at
instagram.com, 6 TTABVUE 347-348 (Ex. HB24);
● An October 5, 2016 printout of the Dr. Greenthumb account on the website at
twitter.com, 6 TTABVUE 349-372 (Ex. HB25); and
● An October 5, 2016 printout of the BREAL.TV account on the website at
twitter.com, 6 TTABVUE 373-395 (Ex. HB26).

Opposition No. 91224802
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Printed Publications
● An August 25, 2016 article entitled Dave Grohl Kicks Out the Jams with
Prophets of Rage in Toronto: Watch, from the website at billboard.com, 6
TTABVUE 264-269 (Ex. HB17);
● A May 1, 2016 article entitled Out Came the Sun, show goes on with a
vengeance after weather delays, from the May 1, 2016 edition of the Commercial
Appeal of Memphis, Tennessee, 6 TTABVUE 270-272 (Ex. HB18);
● An October 30, 2015 article entitled Popular 90s band Cypress Hill still hip
and hopping, from University Wire, 6 TTABVUE 273-275 (Ex. HB19); and
● An October 29, 1998 article entitled Cypress Hill Soars Among the Clouds of
Ganja-Rap, from the Boston Globe, 6 TTABVUE 276-278 (Ex. HB20).
Probative Value of the Internet Materials and Printed Publications
Before turning to our analysis of Opposer’s Section 2(d) claim, we briefly address
the limited probative value of the materials made of record under Opposer’s Second
Notice of Reliance.
Printed Publications
Rule 2.122(e)(1) of the Trademark Rules of Practice provides that “[p]rinted
publications, such as books and periodicals, available to the general public in libraries
or of general circulation among members of the public or that segment of the public
which is relevant in a particular proceeding . . . may be introduced in evidence by
filing a notice of reliance on the material being offered in accordance with paragraph
(g) of this section. The notice of reliance shall specify the printed publication
(including information sufficient to identify the source and the date of the publication)
Opposition No. 91224802
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. . . and be accompanied by . . . the printed publication or a copy of the relevant portion
thereof.” 37 C.F.R. § 2.122(e)(1).
Opposer’s Second Notice of Reliance satisfies the authentication requirements of
Rule 2.122(e)(1) for admission of the printed publications under notice of reliance, but
their probative value is limited. Opposer claims that they “are relevant to show the
use, promotion, notoriety, and strength of Opposer’s DR. GREENTHUMB mark,” 6
TTABVUE 4, but they are admissible under notice of reliance only for what they show
on their faces, not to prove the truth of the statements contained in them. See, e.g.,
Syngenta Crop Prot. Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1117 n.7 (TTAB 2009)
(“A printed publication is only admissible for what it shows on its face; unless it falls
within an exception to the hearsay rule it will not be considered to prove the truth of
any matter stated in the publication.”); L.C. Licensing Inc. v. Berman, 86 USPQ2d
1883, 1887 (TTAB 2008) (“a newspaper article is probative only for what it shows on
its face, not for the truth of the matters contained therein, unless a competent witness
testifies to the truth of such matters.”); see generally Trademark Board Manual of
Procedure Section 704.08(a), n.6 and cases cited therein. Because the printed
publications cannot be used to establish the truth of their contents, they are not
competent evidence of “the use, promotion, notoriety, and strength of Opposer’s DR.
GREENTHUMB mark.” 6 TTABVUE 4.
Internet Materials
Rule 2.122(e)(2) of the Trademark Rules of Practice provides that “Internet
materials may be admitted into evidence under a notice of reliance in accordance with
Opposition No. 91224802
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paragraph (g) of this section, in the same manner as a printed publication in general
circulation, so long as the date the internet materials were accessed and their source
(e.g., URL) are provided.” 37 C.F.R. § 2.122(e).7 Opposer’s second Notice of Reliance
provides the required dates and sources for the Internet materials, and thus satisfies
the authentication requirements of Rule 2.122(e)(2) for their admission under notice
of reliance, but the probative value of these materials is again limited.
“Internet evidence, similar to printed publications, is only admissible for what it
shows on its face, and because it does not fall within the exception to the hearsay
rule, will not be considered to prove the truth of any matter stated therein.” Ayoub,
Inc. v. ACS Ayoub Carpet Serv., 118 USPQ2d 1392, 1399 n.62 (TTAB 2016) (finding
that statements made on third-party website claiming use of the subject mark “since
1929” did not establish such use). Opposer’s Internet materials “are admissible only
to show what has been printed, not the truth of what has been printed,” and are
“probative only for what they show on their face.” Couch/Braunsdorf Affinity, Inc. v.
12 Interactive, LLC, 110 USPQ2d 1458, 1467 n.30 (TTAB 2014) (citing Safer, 94
USPQ2d at 1040).
Opposer offers the website evidence “to show the biography and history of
Opposer’s principal and the use, promotion, notoriety, and strength of Opposer’s DR.
GREENTHUMB mark,” 6 TTABVUE 2, and the social media evidence “to show the
use, promotion, notoriety, and strength of Opposer’s DR. GREENTHUMB mark.” 6

7 Rule 2.122(e)(2) codified the Board’s holding to that effect in Safer, Inc. v. OMS Invs., Inc.,
94 USPQ2d 1031, 1036-39 (TTAB 2010).
Opposition No. 91224802
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TTABVUE 4. Because Internet evidence cannot be used to prove the truth of any
matter stated within it, the Wikipedia and Billboard biographies of B-Real, Wikipedia
entries regarding Dr. Greenthumb, the Cypress Hill group, and the Skull & Bones
album, and the iTunes biography of Cypress Hill, as well as Opposer’s social media
pages, are inadmissible “to show the biography and history of Opposer’s principal,” 6
TTABVUE 2, and, for most part, to show “the use, promotion, notoriety, and strength
of Opposer’s DR. GREENTHUMB mark.” 6 TTABVUE 4.
II. Standing
A threshold issue in every inter partes case is the plaintiff’s standing to challenge
registration. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
USPQ2d 1058, 1062 (Fed. Cir. 2014), cert. denied, 135 S. Ct. 1401 (2015); John W.
Carson Found. v. Toilets.com Inc., 94 USPQ2d 1942, 1945 (TTAB 2010). The plaintiff
must show that it possesses a real interest in the proceeding beyond that of a mere
intermeddler, and that it has a reasonable basis for its belief of damage resulting
from registration of the subject mark. Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d
1023, 1025 (Fed. Cir. 1999).
Because Opposer properly made of record its Registration No. 4662290 of the mark
DR. GREENTHUMB for “Musical sound recordings; downloadable musical sound
recordings; audiovisual recordings featuring music and musical performances;
downloadable audiovisual recordings featuring music and musical performances,”
Opposer has a real interest in the proceeding and a reasonable belief of damage by
registration of Applicant’s mark, Cunningham v. Laser Golf Corp., 222 F.3d 943, 55
USPQ2d 1842, 1844 (Fed. Cir. 2000), and thus has standing to oppose.
Opposition No. 91224802
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III. Opposer’s Section 2(d) Claim
Section 2(d) of the Trademark Act prohibits the registration of a mark that
“[c]onsists of or comprises a mark which so resembles a mark registered in the Patent
and Trademark Office, or a mark or trade name previously used in the United States
by another and not abandoned, as to be likely, when used on or in connection with
the goods of the applicant, to cause confusion, or to cause mistake, or to deceive.” 15
U.S.C. § 1052(d). To prevail on its Section 2(d) claim, Opposer must prove by a
preponderance of the evidence that it has priority in its mark and that use of
Applicant’s mark is likely to cause confusion, mistake, or deception as to the source
or sponsorship of Applicant’s services. Cunningham, 55 USPQ2d at 1848.
A. Priority
Priority may arise from “a prior registration, prior trademark or service mark use,
prior use as a trade name, prior use analogous to trademark or service mark use, or
any other use sufficient to establish proprietary rights.” Herbko Int’l, Inc. v. Kappa
Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1378 (Fed. Cir. 2002). The introduction
of Opposer’s pleaded registration into the record gives Opposer priority here.8 King

8 Opposer’s registration is also sufficient to allow Opposer to proceed to trial without other
evidence. An “opposition can be predicated solely on a prior registration, and neither
testimony need be taken nor further evidence introduced since under § 7 of the Lanham Act,
15 U.S.C. 1057(b), a certificate of registration is ‘prima facie evidence of the validity of the
registration, registrant’s ownership of the mark, and registrant’s exclusive right to use the
mark in commerce in connection with the goods or services specified in the certificate . . . .’”
Tiffany & Co. v. Columbia Indus., Inc., 455 F.2d 582, 173 USPQ 6, 7 (CCPA 1972).
Opposition No. 91224802
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Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA
1974); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1436 n.7 (TTAB 2012).9
B. Likelihood of Confusion
Our determination of the issue of likelihood of confusion under Section 2(d) is
based upon an analysis of all 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 1357, 177 USPQ
563, 567 (CCPA 1973). Opposer argues that the relevant du Pont factors here “are: (i)
the close similarity of the parties’ marks; (ii) the identity and/or relatedness of the
parties’ goods and services; (iii) the strength of the DR. GREENTHUMB mark; (iv)
the overlap of the parties’ trade channels and consumers; and (v) Applicant’s intent,”
8 TTABVUE 18, but “the obligation to consider a factor . . . only arises if there is
evidence of record relating to that factor.” Cunningham, 55 USPQ2d at 1845.
In every likelihood of confusion analysis, two key factors 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 turn first to the du Pont factor regarding the similarity of the goods and
services.

9 Because Opposer’s registration gives Opposer priority, we need not address Opposer’s claim
that it also proved use of its DR. GREENTHUMB mark from a date prior to Applicant’s
constructive use priority filing date of January 26, 2015. 8 TTABVUE 17-18.
Opposition No. 91224802
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1. Similarity of the Goods and Services
This du Pont factor assesses the similarity or dissimilarity of the parties’ goods
and services, which need not be identical or even competitive for confusion to be
likely. “[L]ikelihood of confusion can be found ‘if the respective goods [and services]
are related in some manner and/or if the circumstances surrounding their marketing
are such that they could give rise to the mistaken belief that they emanate from the
same source.’” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d
1715, 1724 (TTAB 2007)). It is well-established that goods can be related to services,
particularly where the services involve the goods in some manner. See, e.g., Hewlett-
Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004-05 (Fed.
Cir. 2002).
Our determination of the similarity of the goods and services is based upon the
identification of goods in Opposer’s registration and the identification of services in
Applicant’s application. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746
F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston
Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
Likelihood of confusion may be found if it exists with respect to any item in the
parties’ identifications of goods and services. Tuxedo Monopoly, Inc. v. General Mills
Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981). Extrinsic evidence of
relatedness is unnecessary if the degree of similarity of the goods and services may
be determined from the identifications alone. Hewlett-Packard, 62 USPQ2d at 1004.
The identification of goods in Opposer’s registration is
Opposition No. 91224802
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Musical sound recordings; downloadable musical sound
recordings; audiovisual recordings featuring music and
musical performances; downloadable audiovisual
recordings featuring music and musical performances.
The identification of services in Applicant’s application is
Entertainment services by a musical artist and producer,
namely, musical composition for others and production of
musical sound recordings; Entertainment services in the
nature of recording, production and post-production
services in the field of music; Entertainment services in the
nature of live music performances; Entertainment,
namely, live music concerts; Entertainment, namely, live
performances by musical bands; Music production services.
We find that the parties’ identified goods and services are very closely related for two
reasons.
First, it is self-evident that the rendition of the services identified in the
application as the “production of musical sound recordings” yields the “[m]usical
sound recordings” and “downloadable musical sound recordings” identified in the
registration. Consumers are likely to believe that the same entity both produces and
sells sound recordings when the production services and the resulting sound
recordings are offered under similar marks. Hewlett-Packard, 62 USPQ2d at 1005.
Second, the goods identified in Opposer’s registration as “musical sound
recordings” and “audiovisual recordings featuring music and musical performances”
do not contain any limitations or restrictions as to their nature or type. As a result,
they are deemed to include recordings of “live music performances,” “live music
concerts,” and “live performances by musical bands,” as well as recordings of studio
performances. In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006) (where
an identification of goods is unrestricted, it encompasses all goods of the nature and
Opposition No. 91224802
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type described therein). We take judicial notice under Rule 201(b) of the Federal
Rules of Evidence that musical performers commonly record their live performances
in sound and audiovisual recordings and make those recordings available to the
public. This is shown by the Internet pages in the record and portions of Applicant’s
specimen of use, which are reproduced below and which reflect the audiovisual and
sound recording of live musical performances through the display on their faces of
embedded links to those recordings, and the exposure of the recordings to the public.

Opposition No. 91224802
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Opposition No. 91224802
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6 TTABVUE 265-267.

We also take judicial notice that music performers offer both live performances and
sound and audiovisual recordings of such performances. Consumers are likely to
Opposition No. 91224802
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believe that musical sound recordings and audiovisual recordings consisting of live
music performances and concerts emanate from the live performer when they are
provided under a mark that is similar to the mark used by the performer when
performing.
This du Pont factor supports a finding of a likelihood of confusion. We turn now to
the du Pont factors regarding the similarity of channels of trade and classes of
customers.
2. Channels of Trade and Classes of Customers
The third du Pont factor considers “[t]he similarity or dissimilarity of established,
likely-to-continue trade channels,” Stone Lion, 110 USPQ2d at 1061, while the fourth
du Pont factor considers the classes of customers to whom the goods and services are
sold. Coach, 101 USPQ2d at 1722-23. Neither Opposer’s registration nor Applicant’s
application contains any restrictions or limitations, and their respective goods and
services are thus presumed to travel through all normal channels of trade for the
identified goods and services and to be sold and provided to all normal classes of
customers for the identified goods and services. See, e.g., In re Thor Tech Inc., 90
USPQ 1634, 1639 (TTAB 2009).
We may infer the general channels of trade and classes of customers from the
identifications of goods and services in the registration and application. In re Viterra
Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012). It is self-evident that
“[m]usical sound recordings,” “downloadable musical sound recordings,” “audiovisual
recordings featuring music and musical performances,” and “downloadable
Opposition No. 91224802
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audiovisual recordings featuring music and musical performances” are marketed to
consumers of “[e]ntertainment services in the nature of live music performances,”
“live music concerts,” and “live performances by musical bands,” and vice versa.
With respect to channels of trade, Applicant’s specimen of use offers information
about Applicant’s live performances as well as access, through a link to the iTunes
website and otherwise, to “downloadable musical sound recordings featuring music
and musical performances.” The pertinent portion of Applicant’s Facebook page
specimen is reproduced below.

We find that the channels of trade for Opposer’s goods and Applicant’s services are
very similar.
The third and fourth du Pont factors support a finding of a likelihood of confusion.
3. Similarity of the Marks.
We compare the parties’ marks, in their entireties, for similarities and
dissimilarities in appearance, sound, connotation, and commercial impression. Palm
Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
Opposition No. 91224802
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73 USPQ2d 1689, 1692 (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 persons who encounter the marks
would be likely to assume a connection between the parties.” Coach, 101 USPQ2d at
1721 (quotation omitted). “The focus is on the recollection of the average purchaser,
who normally retains a general rather than a specific impression of trademarks.” In
re C.H. Hanson Co., 116 USPQ2d 1351, 1353 (TTAB 2015).10 A finding of similarity
in any of the several means of comparison of the marks may be sufficient to support
a finding that the marks are similar. In re White Swan Ltd., 8 USPQ2d 1534, 1535
(TTAB 1988).
Opposer’s registered mark is DR. GREENTHUMB in standard characters.
Applicant’s composite word-and-design mark is reproduced again below.

“[L]ikelihood of confusion cannot be predicated on dissection of a mark, that is, on
only part of a mark. On the other hand, in articulating reasons for reaching a
conclusion on the issue of confusion, there is nothing improper in stating that, for

10 The average purchaser of musical sound recordings and musical entertainment services is
an ordinary consumer.
Opposition No. 91224802
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rational reasons, more or less weight has been given to a particular feature of a mark,
provided the ultimate conclusion rests on consideration of the marks in their
entireties. Indeed, this type of analysis appears to be unavoidable.” In re Nat’l Data
Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). We begin by determining
the dominant portions of the parties’ marks.
Turning first to Applicant’s mark, “[i]n the case of a composite mark containing
both words and a design, ‘the verbal portion of the mark is the one most likely to
indicate the origin of the goods to which it is affixed.’” Viterra, 101 USPQ2d at 1908
(quoting CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983)). In
Viterra, the Federal Circuit “cautioned that there is no general rule that the letter
portion of the mark will form the dominant portion of the mark” and that marks thus
“must be considered on a case-by-case basis,” 101 USPQ2d at 1908, but the record
here shows that the words GREENE THUMB are the dominant portion of Applicant’s
mark because they “likely will appear alone when used in text and will be spoken
when requested by consumers.” Id. at 1911.
Applicant averred in his Answer that he “uses the name ‘Greene Thumb’ as an
alter ego under which he performs, produces, writes, and records music” and that “he
has spent a considerable amount of time and energy performing, recording, and
generally developing a music career using the name ‘Greene Thumb.’” 4 TTABVUE 5
(Answer ¶¶ 22, 25). Applicant also used “Greene Thumb” alone to identify himself
and his services in multiple places in his substitute specimen of use, which he
described as a “web page displaying the applied-for-mark where applicant uses the
Opposition No. 91224802
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applied-for-mark to market applicant's entertainment services.” July 15, 2015
Response to Office Action at 1. We reproduce below an illustrative portion of
Applicant’s substitute specimen, which states that “Greene Thumb is on Facebook,”
and refers to “The Greene Room by Green Thumb” and “Greene Thumb
Musician/Band.”

We find that the words “GREENE THUMB” are the dominant portion of Applicant’s
mark.
With respect to Opposer’s standard character mark DR. GREENTHUMB, we find
that its dominant portion is the compressed word “GREENTHUMB,” which
functions, within the mark as a whole, as the “surname” of the “doctor” identified by
the mark. This source-identifying prominence of the GREENTHUMB portion of
Opposition No. 91224802
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Opposer’s mark is illustrated by one depiction of Opposer’s mark in the record that is
reproduced below.

6 TTABVUE 209.11
Having determined that GREENTHUMB and GREENE THUMB are the
dominant portions of the respective marks, we turn to the required comparison of the
marks in their entireties. Opposer’s mark DR. GREENTHUMB and Applicant’s
composite mark containing the words GREENE THUMB sound very similar when
they are verbalized. Although DR. GREENTHUMB has four syllables while the
words GREENE THUMB in Applicant’s mark have only two, the presence of the
abbreviation for “doctor” in Opposer’s mark is less significant to the sound of the mark
than is the dominant “surname” GREENTHUMB, which is identical in sound to the
dominant words GREENE THUMB in Applicant’s mark. The record indicates that
the letter “e” at the end of the word GREENE in Applicant’s mark is silent and is not
likely to be sounded when the word is pronounced. Applicant’s Facebook page has a

11 As a standard character mark, DR. GREENTHUMB “could be used in any typeface, color,
or size, including the same stylization actually used or intended to be used by the other party,
or one that minimizes the differences or emphasizes the similarities between the marks.”
Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., 115 USPQ2d 1816, 1823 (TTAB 2015) (citing
Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1258-59 (Fed.
Cir. 2011)). We thus must assume that DR. GREENTHUMB could be displayed in the
stylized font in which the words “GREENE THUMB” appear in Applicant’s composite mark,
in addition to the manner shown above, which emphasizes the “surname” GREENTHUMB.
Opposition No. 91224802
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green-colored background and welcomes visitors to the “Greene Room,” which is an
obvious play on the term “greenroom,” which is “a room (as in a theater or studio)
where performers can relax before or after appearances.” Merriam-Webster Online
Dictionary (merriam-webster.com, accessed on July 25, 2017).12 The use of the term
“Greene Room” and the color green on Applicant’s Facebook page confirms that the
word GREENE in Applicant’s mark is intended to be pronounced, and is very likely
to be pronounced, as the color green is pronounced. Cf. Knorr-Nahrmittel
Aktiengesellschaft v. Havland Int’l Inc., 206 USPQ 827, 836 (TTAB 1980) (silent letter
“k” in mark KNORR-SWISS made mark similar in pronunciation to NOR-KING
mark).13 We find that the marks are very similar in sound.
With respect to meaning, because the marks are dominated by the words
GREENTHUMB and GREENE THUMB, respectively, they both connote a “green
thumb,” defined as “an unusual ability to make plants grow.” Merriam-Webster
Online Dictionary (merriam-webster.com, accessed on July 25, 2017). This
connotation leads both marks to have the identical commercial impression of fertility.
We find that the marks are very similar in connotation and commercial impression.

12 The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac
v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983), including online dictionaries that exist in printed form or regular fixed
editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
13 The fact that the words GREENE and THUMB are separated by a space in Applicant’s
mark similarly has no impact on the way in which the words will be pronounced or perceived.
See, e.g., Giersch v. Scripps Networks Inc., 90 USPQ2d 1020, 1025 (TTAB 2009); Seaguard
Corp. v. Seaward Int’l, Inc., 223 USPQ 48, 51 (TTAB 1984).
Opposition No. 91224802
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As to appearance, Opposer mark is in standard characters while Applicant’s mark
contains what he describes in his application as “a design that depicts a skull wearing
a crown [appearing] [d]irectly [above] the wording ‘Greene Thumb’ in stylized font.”14
Opposer argues that the design element is less important to the source-identifying
significance of Applicant’s mark than are the dominant words GREENE THUMB, but
that “to the extent the skull design in Applicant’s mark is considered,15 it only
reinforces the connection with [Opposer]” because “Cypress Hill, the band that B-
Real, HFTB’s president, is associated with, has long used a skull design in connection
with its goods and services.” 8 TTABVUE 22-23. Opposer relies upon the Wikipedia
entries regarding B-Real and the Skull & Bones album (6 TTABVUE 6-11, 23-27) and
pages from the website at cypresshill.com (6 TTABVUE 108-113), to show Cypress
Hill’s use of a skull design. 8 TTABVUE 22-23.
A skull design appears on the cover of the Skull & Bones album (6 TTABVUE 24)
and on pages from the website at cypresshill.com (6 TTABVUE 109-113), but the cited
evidence does not prove “long use [of] a skull design in connection with” Opposer’s
goods because the statements on the Wikipedia pages regarding the Skulls & Bones
album are hearsay when offered to prove facts regarding the sale and distribution of
the album. Applicant admitted in his Answer that Opposer has used a skull design,

14 As discussed above, we must assume that Opposer’s standard character mark could be
displayed in the stylized font in which the words “GREENE THUMB” appear in Applicant’s
mark, but we may not similarly assume that Opposer’s mark would be displayed together
with the design shown in Applicant’s mark. In re Davia, 110 USPQ2d 1810, 1814 (TTAB
2014).
15 It is necessary, of course, when comparing the marks in their entireties, to consider all
elements of Applicant’s mark, including the design. Nat’l Data, 224 USPQ at 750-51.
Opposition No. 91224802
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4 TTABVUE 3 (Answer ¶ 14),16 but the record does not show use of a skull design
together with the DR. GREENTHUMB mark. We find that the DR. GREENTHUMB
mark and Applicant’s mark differ somewhat in appearance due to the presence of the
skull-and-crown design in Applicant’s mark.
As discussed above, the marks are very similar aurally and in connotation and
commercial impression, the three means of comparison that we find to be the most
pertinent to our analysis of similarity given the fact that music fans necessarily refer
to their favorite performers by the oral use of the performers’ marks and the fact that
we must focus “on the recollection of the average purchaser, who normally retains a
general rather than a specific impression of trademarks.” C.H. Hanson, 116 USPQ2d
at 1353. We find that the very close similarity of the marks in sound, connotation,
and commercial impression outweighs the modest differences between the marks in
appearance, and that the marks, considered in their entireties, are very similar. This
du Pont factor strongly supports a finding of a likelihood of confusion.
4. The Strength of Opposer’s DR. GREENTHUMB Mark
Opposer argues that its mark is strong and entitled to a broad scope of protection.
8 TTABVUE 27. A mark’s strength has two elements: (1) its inherent strength,

16 Applicant first “denie[d] the allegations contained in paragraph 14 of the Notice of
Opposition,” 4 TTABVUE 3 (Answer ¶ 14), which include the allegation that “Applicant’s
Mark incorporates a skull design that is similar to the skull design long used by Cypress Hill
with which Opposer is affiliated.” 1 TTABVUE 6 (Not. of Opp. ¶ 14). Applicant then averred
that “[t]he skulls used in each mark are distinct and not otherwise similar” and that
“Opposer’s Mark has a distinctly different skull with no crown.” 4 TTABVUE 4 (Answer ¶
14.a, e). We construe ¶ 14 in Applicant’s Answer as containing an admission that Opposer
has used a skull design and a denial that the skull design and the skull design in Applicant’s
mark are similar.
Opposition No. 91224802
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measured by its placement on the spectrum of distinctiveness of marks, and (2) its
commercial strength, measured by its marketplace recognition. In re Chippendales
USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010);
Couch/Braunsdorf, 110 USPQ2d at 1476.
We agree with Opposer that as it is applied to the goods identified in Opposer’s
registration, DR. GREENTHUMB “is an arbitrary mark,” 8 TTABVUE 27, which is
defined by Professor McCarthy as a mark consisting of “words in common linguistic
use but which, when used with the goods or services in issue, neither suggest nor
describe any ingredient, quality or characteristic of those goods or services.” 2 J.
Thomas McCarthy, McCarthy on Trademarks & Unfair Competition § 11:11 (4th ed.
June 2017 Update). As discussed above, DR. GREENTHUMB connotes a special
aptitude in growing plants, which has nothing intrinsically to do with sound and
audiovisual recordings of music and musical performances.
Opposer further argues that the “DR. GREENTHUMB mark also possesses
marketplace strength.” 8 TTABVUE 28. Opposer claims that
the evidence shows that HFTB’s DR. GREENTHUMB
mark has been used since 1998 when Cypress Hill released
the hit single “Dr. Greenthumb.” (Exs. HB3, HB4 (noting
that the Cypress Hill album IV went gold in the United
States in part due to the success of the “Dr. Greenthumb”
song.) “Dr. Greenthumb” was one of Cypress Hill’s most
popular songs, as noted by several press articles. (Exs.
HB18, HB19.) Several different versions of the song have
been released over the years, and “Dr. Greenthumb” is still
listened to today, having garnered more than 14 million
views on Cypress Hill’s Vevo YouTube channel in the last
seven years. (Exs. HB3, HB10, HB16, HB19.) In addition,
B-Real continues to use the DR. GREENTHUMB mark,
including as the name of an online talk show that airs on
Opposition No. 91224802
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the Breal.tv website and in the lyrics of songs on his The
Prescription mixtape. (Exs. HB2, HB8, HB13.) Consumers
are further exposed to DR. GREENTHUMB due to B-Real’s
use of the DR. GREENTHUMB name as his alter ego. As
set forth above, B-Real uses the name DR. GREENTHUMB
on his Twitter, Instagram, and Facebook accounts. (Exs.
HB21, HB23, HB25.) B-Real’s Instagram account has over
half a million followers and his Facebook page is liked by
nearly a million users. (Exs. HB21, HB23.) Moreover, six of
the eleven songs on The Prescription mixtape were credited
to DR. GREENTHUMB. (Exs. HB9-HB12, HB14-HB15.)
As stated by one blogger, B-Real’s DR. GREENTHUMB
alter ego “has become an icon within the marijuana and
hip-hop communities.” (Ex. HB11.)
8 TTABVUE 28-29.
The record does not support Opposer’s claim that the DR. GREENTHUMB mark
has marketplace strength based upon consumer recognition. Because we cannot
consider the Internet materials and the printed publications in the record for the
truth of the matters stated therein, we cannot find, on the basis of that evidence, that
the “DR. GREENTHUMB mark has been used since 1998;” that “the Cypress Hill
album IV went gold in the United States in part due to the success of the ‘Dr.
Greenthumb’ song;” that “‘Dr. Greenthumb’ was one of Cypress Hill’s most popular
songs, as noted by several press articles;” that “‘Dr. Greenthumb’ is still listened to
today, having garnered more than 14 million views on Cypress Hill’s Vevo YouTube
channel in the last seven years;” that “B-Real’s Instagram account has over half a
million followers and his Facebook page is liked by nearly a million users;”17 or that

17 “[T]he mere introduction of a webpage does not tell us how many people have viewed that
webpage. ‘A party may increase the weight we will give such website evidence by submitting
testimony and proof of the extent to which a particular website has been viewed.’”
Couch/Braunsdorf, 110 USPQ2d at 1467 n.30 (quoting Safer, 94 USPQ2d at 1040). The cited
social media pages bear figures purporting to show the exposure of these pages to the public,
Opposition No. 91224802
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“B-Real’s DR. GREENTHUMB alter ego ‘has become an icon within the marijuana
and hip-hop communities.’”
The Internet materials do show on their faces that “B-Real continues to use the
DR. GREENTHUMB mark, including as the name of an online talk show that airs on
the Breal.tv website and in the lyrics of songs on his The Prescription mixtape;” that
“B-Real uses the name DR. GREENTHUMB on his Twitter, Instagram, and Facebook
accounts;” that “[c]onsumers are further exposed to DR. GREENTHUMB due to B-
Real’s use of the DR. GREENTHUMB name as his alter ego;” and that “six of the
eleven songs on The Prescription mixtape were credited to DR. GREENTHUMB,” but
these facts are insufficient to establish “the length of use and the degree of public
recognition and renown” of the DR. GREENTHUMB mark, or otherwise to show its
commercial strength. 8 TTABVUE 28. See Bose Corp. v. QSC Audio Prods, Inc., 293
F.3d 1367, 63 USPQ2d 1303, 1305-06 (Fed. Cir. 2002).
Although Opposer’s mark is arbitrary and thus conceptually strong, and the
record is devoid of evidence of third-party uses or registrations of marks for
entertainment-related goods or services that consist of or contain the words “green
thumb,” the absence of admissible evidence of the commercial strength of Opposer’s
mark makes this du Pont factor neutral in our analysis of likelihood of confusion.

but those figures are hearsay when offered for their truth. In the absence of corroborating
“testimony and proof of the extent to which a particular website has been viewed,” id., we
cannot consider them as evidence of the commercial strength of Opposer’s mark.
Opposition No. 91224802
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5. Applicant’s Intent
Opposer argues that “Applicant’s bad faith further establishes a likelihood of
confusion between the parties’ marks” because “Applicant’s Mark is a combination of
two elements that call to mind Cypress Hill, the band associated with B-Real, HFTB’s
president—GREENE THUMB, which is virtually identical to the name of one of
Cypress Hill’s most popular songs, and a skull design, which is a design that has long
been used by Cypress Hill.” 8 TTABVUE 30-31. Opposer asks the Board to infer bad
faith because “Applicant has not come forth with any explanation as to why he
adopted a mark that consists of terms and a design that unmistakably refers to
Cypress Hill.” 8 TTABVUE 31. We decline to do so because, as discussed above, the
foundational facts from which we are asked to infer Applicant’s intent have not been
established by admissible evidence, and there is no direct evidence of bad faith intent.
Cf. L.C. Licensing Inc. v. Berman, 86 USPQ2d 1883, 1891 (TTAB 2008) (applicant’s
testimony regarding the adoption of its mark “strain[ed] credulity” and supported a
finding of bad faith and an inference of applicant’s intention to trade off of opposer’s
mark). This thirteenth du Pont factor is neutral in our analysis of likelihood of
confusion.
Conclusion
In balancing the du Pont factors on the record here, we find that the marks, the
goods and services, the classes of customers, and the channels of trade, are similar,
and that the other duPont factors on which Opposer presented evidence or argument
are neutral. We thus find that Opposer proved by a preponderance of the evidence
that Applicant’s use of its mark in connection with production of musical sound
Opposition No. 91224802
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recordings, live music performances, live music concerts, and live performances by
musical bands, is likely to cause consumers of those services to believe mistakenly
that they originate with or are sponsored or authorized by Opposer, the owner of the
registered DR. GREENTHUMB mark.
Decision: The opposition is sustained on the basis of Opposer’s claim under
Section 2(d) of the Trademark Act.