HSG, LLC

Trademark Trial and Appeal Board

Mar 8, 2017

No. 85771143 (T.T.A.B. Mar. 8, 2017)

THIS OPINION IS NOT
A PRECEDENT OF
THE TTAB

Mailed: March 8, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
________

In re HSG, LLC
________

Serial No. 85771143
_______

Thomas G. Varnum of Brooks, Pierce, McLendon, Humphrey & Leonard
for HSG, LLC.

Hélène Liwinski, Trademark Examining Attorney, Law Office 104,
Dayna Browne, Managing Attorney.
_______

Before Quinn, Shaw, and Hightower,
Administrative Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:
HSG, LLC, doing business as High Speed Gear (“Applicant”), filed an application
to register on the Principal Register the mark HIGH SPEED GEAR (in standard
characters) (GEAR disclaimed) for:
Tactical gear for military, law enforcement, public safety,
airsoft not for recreational purposes, and hunting, namely,
pouches and carriers for cartridges and ammunition
magazines, bags and packs designed to carry firearms,
cartridges, ammunition and tactical gear, belts and
shoulder harnesses designed to secure tactical equipment
to the user, sling straps for firearms, fastening clips for
securing military accessories and ammunition pouches, leg
and chest rigs to hold and carry ammunition magazines,
duty belts and rigger belts, plate carriers, holsters, vests
Application Serial No. 85771143

2

designed to carry ammunition magazines, fastening clips
for securing tactical gear accessories and ammunition
magazine pouches, firearm scabbards, ammunition shell
trays, and component parts for ammunition magazine
pouches (in International Class 13).1

Applicant owns the following registrations for the same mark as the present one,
namely HIGH SPEED GEAR (in standard characters) (GEAR disclaimed) for:
Providing manufacturing services for others in the field of
tactical gear and equipment for military, law enforcement,
public safety, airsoft, paintball, hunting and outdoor
recreation applications (in International Class 40);2

Apparel, namely, shirts; headgear, namely, hats and caps
(in International Class 25);3 and

Retail store and on-line retail store services featuring
clothing, tactical equipment, tactical clothing, and tactical
gear related products used for military, law enforcement,
public safety, airsoft, paintball, hunting and outdoor
recreation activities (in International Class 35).4

The Trademark Examining Attorney refused registration under Section 2(d) of
the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when
used in connection with Applicant’s goods, so resembles the previously registered
mark HI-SPEED (in standard characters) for “ammunition” (in International Class
13)5 as to be likely to cause confusion.

1 Application Serial No. 85771143, filed November 5, 2012 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), alleging first use anywhere and first use in commerce
on August 18, 1999.
2 Registration No. 4462827, issued January 7, 2014.
3 Registration No. 4570987, issued July 22, 2014.
4 Registration No. 4578718, issued August 5, 2014.
5 Registration No. 3614383, issued May 5, 2009 pursuant to Section 2(f) of the Trademark
Act, 15 U.S.C. § 1052(f); Sections 8 and 15 combined declaration accepted and acknowledged.
Application Serial No. 85771143

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When the refusal was made final, Applicant appealed and requested
reconsideration. The request for reconsideration was denied, the appeal was resumed,
and Applicant and the Examining Attorney filed briefs.6
Applicant argues that the marks are different, with the additional word GEAR in
Applicant’s mark serving to distinguish them; the goods are different; Applicant’s and
Registrant’s customers are sophisticated and careful, given that they are engaging in
inherently dangerous and often life-risking activities; the existence of third-party
registrations and uses of marks that are similar to the cited mark minimizes the scope
of protection to be given to Registrant’s mark; and the marks have coexisted for
sixteen years without actual confusion. Applicant submitted slang dictionary
definitions of the wording “high speed”; excerpts of third-party websites; and third-
party registrations.
The Examining Attorney maintains that the marks are similar and disagrees that
the cited mark is weak. The Examining Attorney also asserts that the goods are
related. To establish the relatedness of the goods, the Examining Attorney introduced
third-party registrations and websites.
Our determination under Section 2(d) is based on an analysis of all of the facts in
evidence that are relevant to the factors bearing on the likelihood of confusion. In re

6 Applicant’s brief is accompanied by an Appendix comprising Exhibits 1-27 (numbering 392
pages), which Applicant states are the documents submitted during prosecution of the
application. For future reference, evidence already of record should not, as a matter of course,
be resubmitted as exhibits to the brief inasmuch as the appeal brief is associated with the
application. In re Allegiance Staffing, 115 USPQ2d 1319, 1323 (TTAB 2015); In re Sela Prods.
LLC, 107 USPQ2d 1580, 1584 (TTAB 2013); In re SL&E Training Stable Inc., 88 USPQ2d
1216, 1220 n.9 (TTAB 2008). See TBMP §§ 1203.01, 1203.02(e) (Jan. 2017).
Application Serial No. 85771143

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E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). 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 (CCPA 1976). Each case must be
decided on its own facts and any one du Pont factor may play a dominant role in the
determination of likelihood of confusion. Champagne Louis Roederer S.A. v. Delicato
Vineyards, 148 F.3d 1373, 47 USPQ2d 1459, 1460-61 (Fed. Cir. 1998).
As to the second du Pont factor regarding the similarity of the goods, the goods
do not have to be identical or even competitive for confusion to be likely. “[L]ikelihood
of confusion can be found ‘if the respective goods 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)). “The goods
need only be sufficiently related that consumers would be likely to assume, upon
encountering the goods under similar marks, that the goods originate from, are
sponsored or authorized by, or are otherwise connected to the same source.” In re
Davia, 110 USPQ2d 1810, 1815 (TTAB 2014) (citing Coach). The issue here, of course,
is not whether purchasers would confuse the goods, but rather whether there is a
likelihood of confusion as to the source of these goods. L’Oreal S.A. v. Marcon, 102
USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223 USPQ 830 (TTAB 1984).
Application Serial No. 85771143

5

In comparing the goods, we must look to the goods as identified in the application
and the cited registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP,
746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys., Inc.
v. Houston Computers Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990)); In re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011). Applicant’s
identification of goods, in relevant part, reads “tactical gear for military, law
enforcement, [and] public safety, … namely, pouches and carriers for cartridges and
ammunition magazines, bags and packs designed to carry firearms, cartridges,
ammunition and tactical gear, … fastening clips for securing military accessories and
ammunition pouches, leg and chest rigs to hold and carry ammunition magazines, …
holsters, vests designed to carry ammunition magazines, fastening clips for securing
tactical gear accessories and ammunition magazine pouches, … ammunition shell
trays, and component parts for ammunition magazine pouches.” Thus, Applicant’s
goods include tactical gear for military and law enforcement personnel to carry, fasten
and hold ammunition. Registrant’s identification of goods is “ammunition.”
The Examining Attorney’s evidence bearing on the relatedness of the goods
includes copies of several use-based third-party registrations, which individually
cover, under the same mark, both types of Class 13 goods involved herein. (Office
Actions, Mar. 8, 2013, TSDR 12-24; Sept. 26, 2014, TSDR 2-25). “Third-party
registrations which cover a number of differing goods and/or services, and which are
based on use in commerce, although not evidence that the marks shown therein are
in use on a commercial scale or that the public is familiar with them, may
Application Serial No. 85771143

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nevertheless have some probative value to the extent that they may serve to suggest
that such goods or services are of a type which may emanate from a single source.” In
re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d, 864 F.2d
149 (Fed. Cir. 1988). See also In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-
86 (TTAB 1993). A representative sample of the registrations includes the following:
HIGH GROUND
Military and law enforcement tactical operations
accessories, namely, belts, vests and harnesses used for
carrying tactical equipment, namely, ammunition;
ammunition.
(Reg. No. 4154777)

A-TACS
Law enforcement and military tactical operations products
and accessories, namely, magazine pouches, cartridge
pouches, holsters, ammunition.
(Reg. No. 4210225)

ARFCOM
Ammunition; belts adapted for ammunition; cartridge
belts; cartridge pouches.
(Reg. No. 4357893)

US and design
Gun belts; rifle ammunition.
(Reg. No. 4464306)

ARMED AND DISCIPLINED
Ammunition; ammunition bags; automatic firearm
ammunition belts; bandoliers for holding cartridges or
ammunition cases.
(Reg. No. 4492446)

STOCKPILE DEFENSE LLC and design
Ammunition for firearms; belts adapted for ammunition;
holsters; cartridge pouches.
(Reg. No. 4493842)

Application Serial No. 85771143

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CAI
Cartridge belts, holsters, ammunition for firearms.
(Reg. No. 4511719)

The Examining Attorney also introduced portions of third-party websites
showing that the same entity sells, under the same mark, both types of Class 13 goods
involved herein. (Sept. 6, 2013 Office Action, TSDR 2-29). The websites include:
www.crosman.com; www.northamericanarms.com; www.tacticalammunition.com;
www.fnhusa.com; www.wilsoncombat.com; and www.wolfammo.com.
Although ammunition on the one hand, and tactical gear to carry and hold
ammunition on the other are specifically different goods, the evidence establishes
that the goods are related for purposes of the likelihood of confusion determination.
This du Pont factor weighs in favor of a finding of likelihood of confusion.
Under the third du Pont factor, we determine the similarity or dissimilarity of
the trade channels in which the respective goods are or would be marketed. Because
there are no limitations or restrictions as to trade channels or classes of purchasers
in Registrant's broad identification of goods, i.e., “ammunition,” we presume that
those goods are marketed in all normal trade channels for such goods and to all
normal classes of purchasers of such goods. See, e.g., Coach Servs., Inc., 101 USPQ2d
at 1722; In re Elbaum, 211 USPQ 639 (TTAB 1981). These trade channels include
stores and websites selling ammunition to members of the military, law enforcement
and public safety personnel. These same stores and websites, as shown by the
Examining Attorney’s evidence, also sell a variety of tactical gear of the type sold by
Applicant to the military and law enforcement communities. Thus, the goods, namely
Application Serial No. 85771143

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ammunition and tactical gear for carrying ammunition, travel in the same trade
channels to the same classes of purchasers. Accordingly, this du Pont factor weighs
in favor of a finding of likelihood of confusion.
The fourth du Pont factor considers “[t]he conditions under which and buyers to
whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.” Du Pont,
177 USPQ at 567. As just noted, the purchasers of Registrant’s ammunition and
Applicant’s tactical gear are presumed to be the same. They would include military
and law enforcement buyers of ammunition for their firearms, as well as of tactical
gear to wear while engaging in hazardous activities. As argued by Applicant, the
relevant consumers engage in inherently dangerous situations that require a level of
purchasing sophistication. Indeed, according to Applicant, “one can hardly imagine a
consumer group more motivated to make careful purchasing decisions.” 12 TTABVUE
21. Applicant also points to the “relatively expensive” price of tactical gear, which
tends to cost hundreds of dollars. We agree that the nature of tactical gear and
ammunition, purchased by military, law enforcement and public safety personnel,
demands a thoughtful purchasing decision. These customers are likely to exercise
heightened care given that the goods are used to protect their lives. The conditions of
sale, involving the discriminating nature of military, law enforcement and public
safety buyers, is a factor that weighs in Applicant’s favor, i.e., against a finding of
likelihood of confusion between the marks.
With respect to the first du Pont factor dealing with the similarity of the marks,
we must compare Applicant’s mark HIGH SPEED GEAR to the registered mark HI-
Application Serial No. 85771143

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SPEED in their entireties as to appearance, sound, connotation and commercial
impression.7 Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177
USPQ at 567). “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 Servs., Inc., 101 USPQ2d at 1721 (citation
omitted).
Although marks must be considered in their entireties, it is settled that one
feature of a mark may be more significant than another, and it is not improper to give
more weight to this dominant feature in determining the commercial impression
created by the mark. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985) (“There is nothing improper in stating that, for 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.”).

7 Applicant argues that Registrant’s use of a house mark with its registered mark eliminates
any potential for consumer confusion, relying on a specimen in the file of the cited
registration: “[Registrant’s] specimen shows repeated and prominent use of its house mark
[REMINGTON] in close proximity to its HI-SPEED mark … the use of the famous
REMINGTON house mark on the HIGH-SPEED ammunition sold by [Registrant] provides
further evidence that, in the marketplace, there can be little confusion….” This argument is
not persuasive because the comparison is based on the marks as depicted in the respective
application and registration, without regard to whether, for example, Registrant’s registered
mark will appear with a house mark, even if the house mark is widely used and recognized.
See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 n.4 (Fed. Cir. 1993) (indicating
that applicant’s assertions that the applied-for mark would appear with applicant’s house
mark were not considered in the likelihood-of-confusion determination).
Application Serial No. 85771143

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When considering Applicant’s mark, the words HIGH SPEED are dominant.
Purchasers in general are inclined to focus on the first word or portion in a trademark;
in Applicant’s mark, HIGH SPEED is the first portion. Palm Bay Imps., Inc., 73
USPQ2d at 1692; Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897
(TTAB 1988) (“[I]t is often the first part of a mark which is likely to be impressed
upon the mind of a purchaser and remembered.”). Not only are these words the first
portion in the mark, but the word that follows, GEAR, is generic and properly
disclaimed. See, e.g., In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-
34 (Fed. Cir. 1997) (“DELTA,” not the disclaimed generic term “CAFE,” is the
dominant portion of the mark THE DELTA CAFE). The HIGH SPEED portion of
Applicant’s mark is similar to the entirety of Registrant’s mark HI-SPEED, and it is
likely that consumers, when encountering Applicant’s mark, will focus on the
dominant literal portion, namely the wording HIGH SPEED.
Although we have pointed to the dominant portion of Applicant’s mark, we
acknowledge the fundamental rule in this situation that the marks must be
considered in their entireties. See Jack Wolfskin Ausrustung Fur Draussen GmbH &
Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1134
(Fed. Cir. 2015). Thus, we have considered the presence of the word GEAR in
Applicant’s mark. Even when we factor in the additional generic word GEAR in
Applicant’s mark, however, we find that the marks HIGH SPEED GEAR and HI-
SPEED are similar in sound (HIGH and HI are phonetic equivalents) and
appearance.
Application Serial No. 85771143

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Applicant points to differences in meaning when the marks are considered in the
context of the goods. Applicant stated that Registrant’s mark HI-SPEED is “highly
descriptive” when used in the context of ammunition, specifically high-velocity
ammunition. 12 TTABVUE 15-17. As to the meaning of HIGH SPEED in its mark,
Applicant relies on evidence showing the meaning of the wording “high speed” among
military members and veterans.
Considering Registrant’s mark first, the cited registration issued under Section
2(f), which may be construed as a concession that the mark is not inherently
distinctive. See Cold War Museum, Inc. v. Cold War Air Museum, Inc., 586 F.3d 1352,
92 USPQ2d 1626, 1629 (Fed. Cir. 2009) (“Where an applicant seeks registration on
the basis of Section 2(f), the mark’s descriptiveness is a nonissue; an applicant’s
reliance on Section 2(f) during prosecution presumes that the mark is descriptive.”).
See also TMEP § 1212.02(b) (Jan. 2017). To state the obvious, ammunition has a “high
speed” velocity.
With respect to the meaning of “high speed” in its mark, Applicant submitted
materials, including listings from slang dictionaries, showing that the wording has
significance in the context of the military:
High Speed: An individual who is highly motivated and at
or near peak efficacy.
military.com
(Mar. 5, 2014 Response, TSDR 57)

High Speed: a squared-away and highly motivated soldier.
goarmyparents.com
(Aug. 14, 2013 Response, TSDR 20)

Application Serial No. 85771143

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High speed, low drag (US) excellent.
aboutlanguageschools.com/militaryslang
(Mar. 26, 2015 Response, TSDR 30)

Within the fraternity of the United States Army, a “high-
speed” soldier is a self-motivated individual who sets the
standard for excellence and professionalism.
The U.S. Army Band (“Pershing’s Own”) “High Speed”
record album cover.
(Mar. 26, 2015 Response, TSDR 5-6)

Keep Calm and Date A High Speed Soldier
keepcalmposters.com
(Mar. 5, 2014 Response, TSDR 109)

High-Speed, Low-Drag Implications for the Military, and
Beyond
military1.com
(Mar. 26, 2015 Response, TSDR 30)

Employment: Simply Hired, Average High Speed Soldier
Salaries
simplyhired.com
(Mar. 26, 2014 Response, TSDR 47)

The evidence shows that Applicant’s mark HIGH SPEED GEAR conveys the
suggestion that the tactical gear is used or preferred by military and law enforcement
personnel who are “high speed,” i.e., soldiers and police officers who possess a variety
of good qualities. Registrant’s mark HI-SPEED describes ammunition that travels at
a high velocity. Thus, to the extent that the goods are directed to military and law
enforcement consumers, the marks may have somewhat different meanings.
The similarities in appearance and sound outweigh any difference in meaning.
Thus, on balance, the marks engender similar overall commercial impressions. The
du Pont factor involving the similarity in the marks weighs in favor of a finding of
likelihood of confusion.
Application Serial No. 85771143

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The sixth du Pont factor requires us to consider evidence pertaining to the
number and nature of similar marks in use on similar goods. Citigroup Inc. v. Capital
City Bank Group, Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011). As
noted above, the cited registration issued under Section 2(f), with Applicant
contending this shows that the mark is descriptive. Thus, we turn to consider the
cited mark’s commercial and conceptual strength. Indeed, “[t]he weaker an opposer’s
mark [or Registrant’s cited mark], the closer an applicant’s mark can come without
causing a likelihood of confusion and thereby invading what amounts to its
comparatively narrower range of protection.” Juice Generation, Inc. v. GS
Enterprises, LLC, 794 F.2d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015).
In connection with this factor, Applicant introduced copies of fifteen third-party
registrations to show that the word HIGH or variations thereof are weak or so widely
used that the cited mark should not be afforded a broad scope of protection: “Such
widespread third-party use of the term ‘high,’ ‘hi-’ or ‘hy-’ in connection with
ammunition and other related equipment in Class 013 demonstrates that consumers
have been conditioned to distinguish among the marks based on the differences in
the marks, such as the use of the word ‘GEAR’ in Applicant’s HIGH SPEED GEAR
mark.” 12 TTABVUE 25.
The record includes the following fifteen active third-party registrations for
marks covering ammunition and goods related thereto: HI-SHOK (Reg. No. 0765673;
Reg. No. 0891883); HI-POWER (Reg. No. 1607415); HIGH NOON HOLSTERS (Reg.
No. 2277469); HI-STANDARD (Reg. No. 2856094); HI-SCORE (Reg. No. 2891058);
Application Serial No. 85771143

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HIGH DENSITY (Reg. No. 3022250); HYBRED-ELITE (Reg. No. 3473829);
HYPERMAX (Reg. No. 3628446); HYSKORE (Reg. No. 3922415); HYPERSONIC
STEEL (Reg. No. 3929560); HYPER SPEED (Reg. No. 4071525); HIGH POWER
AIRSOFT and design (Reg. No. 4142203); HIGH GROUND (Reg. No. 4154777); and
HYPERSONIC (Reg. No. 4471615).8 (Mar. 4, 2014 Response, TSDR 138-220). Third-
party registrations are relevant evidence of the inherent or conceptual strength of a
mark or term because they are probative of how terms are used in connection with
the goods or services identified in the registrations. “Third party registrations show
the sense in which the word is used in ordinary parlance and may show that a
particular term has descriptive significance as applied to certain goods or services.”
See, e.g., Institut National Des Appellations D’Origine v. Vintners Int’l Co., 958 F.2d
1574, 22 USPQ2d 1190, 1196 (Fed. Cir. 1992). See also Juice Generation, Inc. 115
USPQ2d at 1674-75; Jack Wolfskin, 116 USPQ2d at 1136; In re Box Solutions Corp.,
79 USPQ2d 1953, 1955 (TTAB 2006). Third-party registrations used in this manner
are not evidence that customers are accustomed to seeing the use of other, similar,
marks in the marketplace, but rather evidence that a term is suggestive or descriptive
of the relevant goods or services, just as in the case of a dictionary definition. Such
terms may be conceptually weak because the more suggestive or descriptive a term

8 Applicant’s evidence includes three “dead,” i.e., cancelled, third-party registrations, which
are of limited probative value. See Action Temporary Servs. Inc. v. Labor Force Inc., 870 F.2d
1563, 10 USPQ2d 1307, 1309 (Fed. Cir. 1989) (“[A] cancelled registration does not provide
constructive notice of anything.”). Likewise, the two third-party applications submitted by
Applicant are of limited probative value, showing only that the applications were filed. See
Bond v. Taylor, 119 USPQ2d 1049, 1055 n.11 (TTAB 2016); Weider Publ’ns, LLC v. D&D
Beauty Care Co., 109 USPQ2d 1347, 1359-60 (TTAB 2014).
Application Serial No. 85771143

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is, the less likely prospective purchasers are to attach source-identifying significance
to it. In re Morinaga Nyugyo Kabushiki Kaisha, 120 USPQ2d 1738, 1744-46 (TTAB
2016).
Also of record are screenshots of pages from eleven third-party websites showing
uses of the following terms (four of them being the subjects of registrations as shown
above) in connection with firearms and ammunition: HYPER SPEED; HI-POWER;
HI-IMPACT; HI-BRASS; HIGH COUNTRY; HIPERTOUGH; HI-SHOK; HIGH
STANDARD; HYBRED; HYPER SONIC; and HYSKORE. (Mar. 4, 2014 Response,
TSDR 221-264).
Applicant has relied on the third-party websites to show the word “high” and
variations thereof are in fact frequently used in connection with ammunition.
Evidence of extensive third-party use of a term on or in connection with the same or
similar goods in the relevant marketplace can be probative of the term’s weakness as
a trademark. Jack Wolfskin, 116 USPQ2d at 1136; Palm Bay Imps, Inc., 73 USPQ2d
at 1691 (“The purpose of a defendant introducing third-party uses is to show that
customers have become so conditioned by a plethora of such similar marks that
customers ‘have been educated to distinguish between different such marks on the
bases of minute distinctions.’”). The type of strength (or its inverse, weakness)
addressed by the sixth du Pont factor is sometimes referred to as market or
commercial strength. This is the degree of association in the mind of the consumer of
the mark with the source of the goods based on the exclusivity (and sometimes
renown) of the mark in the relevant market. See In re Chippendales USA, Inc., 622
Application Serial No. 85771143

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F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured
both by its conceptual strength (distinctiveness) and its marketplace strength
(secondary meaning).”); Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110
USPQ2d 1458, 1476 (TTAB 2014); Tea Board of India v. Republic of Tea Inc., 80
USPQ2d 1881 (TTAB 2006).
In the present case, the evidence shows that the registered mark is conceptually
weak, thereby entitling it to a lesser scope of protection. Further, given the third-
party uses, the registered mark likewise is commercially weak. We do not find,
however, that the third-party registrations and uses are so extensive as to constitute
“powerful” evidence of weakness. Juice Generation, 115 USPQ2d at 1674; Jack
Wolfskin, 116 USPQ2d at 1136. We particularly note that the examples showing
registration and/or use of HYBRED, HYPER, and HIPER are of little probative value,
given that these terms are different from, and not synonymous with HI or HIGH.
Further, we have discounted the HIGH GROUND, HIGH COUNTRY and HYSKORE
examples which, respectively, reference altitude or a large number and not the
concepts involved with either Applicant’s mark or the cited mark. Although we have
considered all of the evidence relating to this du Pont factor, none of the third-party
marks is for HI-SPEED (or a variation thereof) and, thus, none of them are as close
to this cited mark as is Applicant’s mark. In any event, although we recognize that
this phonetic equivalent of “high speed” may be highly suggestive or merely
descriptive of ammunition, even weak marks, such as the cited mark that was
registered only upon a showing of acquired distinctiveness, are protected against
Application Serial No. 85771143

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similar marks for similar marks. See King Candy Co. v. Eunice King’s Kitchen, Inc.,
496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974) (likelihood of confusion is to be
avoided as much between weak marks as between strong marks); Top Tobacco LP v.
North Atlantic Operating Co., 101 USPQ2d 1163, 1173 (TTAB 2011). We find that the
sixth du Pont factor is, at best, slightly in favor of Applicant’s contention that
confusion is unlikely.
With respect to the eighth du Pont factor, namely the length of time during and
conditions under which there has been contemporaneous use without evidence of
actual confusion, Applicant points to the contemporaneous use of the marks for over
16 years (based on the respective first use dates set forth in the application and cited
registration) without any reported instances of actual confusion. Applicant argues
that the “lack of actual confusion emphasizes that no likelihood of confusion exists in
these circumstances.” 12 TTABVUE 25. It is not necessary, however, to show actual
confusion in order to establish likelihood of confusion. See Herbko Int’l, Inc. v. Kappa
Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002); Weiss Assocs. Inc.
v. HRL Assocs. Inc., 902 F.2d 1546, 14 USPQ2d 1840, 1842-43 (Fed. Cir. 1990).
Moreover, Applicant’s assertion, particularly in this ex parte proceeding, is entitled
to little weight. See In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1205 (Fed. Cir. 2003) (“uncorroborated statements of no known instances of
actual confusion are of little evidentiary value”). See also In re Bisset-Berman Corp.,
476 F.2d 640, 177 USPQ 528, 529 (CCPA 1973) (stating that testimony of applicant’s
corporate president’s unawareness of instances of actual confusion was not conclusive
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that actual confusion did not exist or that there was no likelihood of confusion); In re
Binion, 93 USPQ2d 1531, 1536 (TTAB 2009); In re 1st USA Realty Prof’ls Inc., 84
USPQ2d 1581, 1588 (TTAB 2007); In re Kangaroos U.S.A., 223 USPQ 1025, 1026-27
(TTAB 1984). In any event, the record is devoid of evidence relating to the extent of
use of Applicant’s and Registrant’s marks that would enable us to determine whether
there have been meaningful opportunities for instances of actual confusion to have
occurred in the marketplace. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55
USPQ2d 1842, 1847 (Fed. Cir. 2000). Accordingly, the du Pont factor of the length of
time during and conditions under which there has been contemporaneous use of the
marks without evidence of actual confusion is considered neutral.
Under the thirteenth du Pont factor, we consider “any other established fact
probative of the effect of use.” See In re Strategic Partners Inc., 102 USPQ2d 1397,
1399 (TTAB 2012). In this regard, we acknowledge, as indicated earlier, that
Applicant already owns three registrations of the mark HIGH SPEED GEAR for
goods and services related to the goods in the present application. This evidence does
not compel a different result herein, however, because the present application covers
goods that are closer to the goods in the cited registration than are the goods and
services in Applicant’s registrations. See In Florists’ Transworld Delivery Inc., 106
USPQ2d 1784, 1791-92 (TTAB 2013) (“[I]t is well settled that neither the Board nor
our primary reviewing court is bound by prior determinations by the Office and each
case must be decided on its own merits.” (citing In re Nett Designs Inc., 236 F.3d 139,
57 USPQ2d 1564, 1566 (Fed. Cir. 2001)). This factor is neutral.
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The similarities in the marks and in the goods, and the identity in trade channels
and purchasers weigh in favor of a finding of likelihood of confusion; the factors of
conditions of sale and third-party uses and registrations of similar marks for similar
goods weigh against a finding of likelihood of confusion. The other relevant du Pont
factors are neutral. We find that the relevant du Pont factors, on balance, favor a
conclusion that purchasers familiar with Registrant’s “ammunition” sold under the
mark HI-SPEED would be likely to mistakenly believe, upon encountering
Applicant’s mark HIGH SPEED GEAR for “tactical gear for military, law
enforcement, [and] public safety, ... namely, pouches and carriers for cartridges and
ammunition magazines, bags and packs designed to carry firearms, cartridges,
ammunition and tactical gear, ... fastening clips for securing military accessories and
ammunition pouches, leg and chest rigs to hold and carry ammunition magazines, ...
holsters, vests designed to carry ammunition magazines, fastening clips for securing
tactical gear accessories and ammunition magazine pouches, ... ammunition shell
trays, and component parts for ammunition magazine pouches,” that the goods
originated from or are associated with or sponsored by the same entity. While the
factors that favor a contrary result raise some doubt about our conclusion on the
likelihood of confusion, that doubt is required to be resolved in favor of the prior
registrant. In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir.
2010); In re Hyper Shoppes (Ohio), Inc., 837 F.2d 840, 6 USPQ2d 1025 (Fed. Cir.
1988); In re Martin's Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289
(Fed. Cir. 1984).
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Decision: The refusal to register is affirmed.