INC International Company

Trademark Trial and Appeal Board

Oct 13, 2015

No. 85753740 (T.T.A.B. Oct. 13, 2015)

This Opinion is Not a
Precedent of the TTAB

Mailed: October 13, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re INC International Company
_____

Serial No. 85753740
_____

Matthew H. Swyers of The Trademark Company PLLC,
for INC International Company.
Miroslav Novakovic, Trademark Examining Attorney, Law Office 108,
Andrew Lawrence, Managing Attorney.
_____

Before Quinn, Zervas and Kuczma,
Administrative Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:
INC International Company (“Applicant”) filed an application to register on the
Principal Register the mark shown below

for “athletic shirts; sport coats” in International Class 25.1

1 Application Serial No. 85753740, filed October 15, 2012 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), alleging first anywhere and first use in commerce on
October 15, 2012. The application includes the following statement: “The mark consists of
stylized letters forming the word ‘BALLER.’”
Application Serial No. 85753740

2

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 shown below

for “caps; hats; jogging suits; pants; polo shirts; shoes; sweatpants; T-shirts” in
International Class 25,2 as to be likely to cause confusion.
When the refusal was made final, Applicant appealed. Applicant and the
Examining Attorney submitted briefs. We affirm the refusal.
Applicant, although acknowledging the presence of a common literal element in
the marks, argues that the marks are different. Applicant asserts that the term
“baller(s)” is so widely used that purchasers will look to other elements in the marks
to distinguish them. Applicant also asserts that the goods are different.3 Applicant

2 Registration No. 3295388, issued September 18, 2007; Sections 8 and 15 combined
declaration accepted and acknowledged. The registration includes the following statements:
“The mark consists of the word ‘BALLERS’ superimposed over a basketball with a crown on
the top left, all drawn in black outline on white with grey shading. The color(s) black, white
and grey is/are claimed as a feature of the mark.”
3 As to the goods, Applicant’s arguments on this point are confusing. At one point, Applicant
argues that its goods “travel in a channel of trade wholly diverse from those of Registrant,
while later it “concedes that the goods of the Applicant and the goods of the cited marks
[sic] are very similar and therefore one can assume that the trade and marketing channels
are similar.” (Request for Reconsideration, pp. 7-8, 12/15/14). Applicant goes on in its
appeal brief to argue that “there is no overlap in the goods” (Brief, p. 12, 12 TTABVUE 13),
but then states that “there is potential for some overlap.” Id.
Application Serial No. 85753740

3

states that it is unaware of any instances of actual confusion between the marks. In
support of its arguments, Applicant submitted dictionary definitions, an excerpt
from Registrant’s Facebook page, copies of third-party registrations, and an excerpt
of a third-party website.
The Examining Attorney maintains that the marks are similar, and that the
goods are highly related and travel through the same trade channels to the same
consumers. In support of the refusal, the Examining Attorney submitted dictionary
definitions, copies of third-party registrations, and excerpts of third-party 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 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.” In re SL&E Training
Stable, Inc., 88 USPQ2d 1216, 1217 (TTAB 2008). See also 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.”).
The Goods
We initially turn to consider the second du Pont factor concerning the goods.
When analyzing the similarity of the goods, “it is not necessary that the products of
the parties be similar or even competitive to support a finding of likelihood of
confusion.” Coach Services Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
Application Serial No. 85753740

4

USPQ2d 1713, 1722 (Fed. Cir. 2012), citing 7-Eleven Inc. v. Wechsler, 83 USPQ2d
1715, 1724 (TTAB 2007). Instead, likelihood of confusion can be found “if the
respective products 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.” Id. 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).
Contrary to the gist of Applicant’s argument on this factor, in making our
determination regarding the relatedness of 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 Computer Servs., Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990); In re Giovanni Food Co., 97 USPQ2d 1990,
1991 (TTAB 2011). Likelihood of confusion must be found if there is likely to be
confusion with respect to any item in a class that comes within the identification of
goods in the application and cited registration. See Tuxedo Monopoly, Inc. v. General
Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Apple Computer
v. TVNET.Net, Inc., 90 USPQ2d 1393, 1398 (TTAB 2007).
Accordingly, we compare Applicant’s “athletic shirts; sport coats” to Registrant’s
“caps; hats; jogging suits; pants; polo shirts; shoes; sweatpants; T-shirts.” Applicant
states in its appeal brief that “[t]here is potential for some overlap between the
Application Serial No. 85753740

5

categories of ‘athletic shirts’ as claimed by the Applicant and the ‘polo shirts, … t-
shirts’ claimed by the Registrant.” (12 TTABVUE 13). Applicant goes on to argue,
however, that consideration of extrinsic evidence reveals differences between the
goods; Applicant relies on Registrant’s Facebook page, contending that Registrant’s
goods bear the names and logos of college and professional basketball teams
whereas Applicant’s goods are not basketball related or otherwise related to any
sports teams.
Applicant’s argument is futile. An applicant may not restrict the scope of the
goods covered in its application or in the cited registration by argument or extrinsic
evidence. In re Midwest Gaming & Entertainment LLC, 106 USPQ2d 1163, 1165
(TTAB 2013); In re La Peregrina Ltd., 86 USPQ2d 1645, 1647 (TTAB 2008); In re
Bercut-Vandervoort & Co., 229 USPQ2d 763, 764 (TTAB 1986). Thus, any specific
differences between the actual natures of the goods are irrelevant in our analysis.
The identification of goods in the cited registration does not include the limitation
highlighted by Applicant; and Applicant’s identification is broadly worded so, for
example, Applicant’s “athletic shirts” are construed to encompass all types of
athletic shirts, including those bearing the names of college and professional
basketball teams. See Paula Payne Products Co. v. Johnson Publishing Co., 473
F.2d 901, 177 USPQ 76 (CCPA 1973); Kalart Co. v. Camera-Mart, Inc., 258 F.2d
956, 119 USPQ 139 (CCPA 1958); In re Linkvest S.A., 24 USPQ2d 1716 (TTAB
1992) (goods in an identification without limitations or restrictions is presumed to
encompass all goods of the type identified).
Application Serial No. 85753740

6

In point of fact, the Examining Attorney submitted evidence to show that the
goods are similar. Of record are numerous use-based third-party registrations
showing that in each instance a single entity has registered the same mark for both
types of goods involved in this appeal. The examples include the following:
Registration No. 4462501 for the mark BTMKR for “caps, T-shirts and sport coats”;
Registration No. 4110963 for the mark Q-WEAR for “sweatpants and sport coats”;
Registration No. 4065534 for the mark SOCIAL STATUS and design for “T-shirts,
polo shirts and sport coats”; Registration No. 4062969 for the mark COMMON
METHOD for “T-shirts, sweatpants and sport coats” Registration No. 4055246 for
the mark SKRIBBLE (stylized) for “jogging suits, sweat pants and sport coats”; and
Registration No. 4034626 for the mark CB (stylized) for “footwear, sport coats,
sweatpants, T-shirts.” “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 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).
The Examining Attorney also relied upon the websites of third parties showing
that clothing items of the type involved herein are related in terms of function or
purpose. (See, e.g., zappos.com, wearenergy.com, bluedevils.org).
Application Serial No. 85753740

7

Accordingly, the evidentiary record establishes that the goods are similar, and
this factor weighs in favor of finding a likelihood of confusion.
Trade Channels, Purchasers and Conditions of Sale
As to trade channels, Applicant’s argument that its goods are sold through a
single website hosted by a third party (unequal.com), while Registrant markets its
goods through its Facebook page, is irrelevant. Likewise, Applicant’s statement that
its goods “are sold primarily to people who appreciate the look of the clothing and
the sentiment of the mark, which signals self-confidence and success,” whereas
Registrant’s goods “are sold primarily to people seeking to announce and display
their support for a specific basketball team,” is irrelevant. (Brief, p. 14, 12
TTABVUE 15). These arguments are irrelevant because the identifications of goods
do not include any of the limitations relied upon by Applicant in attempting to
distinguish the goods. When the identification of goods does not include any
limitation as to the trade channels or class of purchasers for the listed goods, it is
presumed that the goods move in all normal channels of trade, and that they are
available to all classes of purchasers. See, e.g., Levi Strauss & Co. v. Abercrombie &
Fitch Trading Co., 719 F.3d 1367, 1373, 107 USPQ2d 1167, 1173 (Fed. Cir. 2013); In
re Thor Tech, Inc., 90 USPQ2d 1634, 1638 (TTAB 2009) (“We have no authority to
read any restrictions or limitations into the registrant’s description of goods.”); In re
Jump Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006).
Thus, we presume that Applicant’s and Registrant’s clothing items are sold in
the same stores, such as clothing stores and the clothing sections of department
Application Serial No. 85753740

8

stores or mass merchandisers. In the present case, this presumption is confirmed by
the Examining Attorney’s evidence of third-party websites showing that that the
same retailer offers the types of goods listed in the application and the cited
registration. (See, e.g., josbank.com, brooksbrothers.com).
The goods would be purchased by the same classes of purchasers, including
ordinary consumers. There are no limitations in the identifications of goods relating
to the cost of the clothing items and, thus, we must assume that the items may be
relatively inexpensive. This fact is borne out by the third-party websites showing
that athletic shirts and the like can be relatively inexpensive. Relevant purchasers
would be expected to exercise nothing more than ordinary care in purchasing these
clothing items and, because they can be inexpensive, may even purchase them on
impulse. “When products are relatively low-priced and subject to impulse buying,
the risk of likelihood of confusion is increased because purchasers of such products
are held to a lesser standard of purchasing care.” Recot Inc. v. M.C. Becton, 214 F.3d
1322, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000); Specialty Brands, Inc. v. Coffee Bean
Distributors, Inc., 748 F.2d 669, 223 USPQ 1281, 1282 (Fed. Cir. 1984).
The identity in trade channels and purchasers, and the conditions under which
sales are made are factors that weigh in favor of a finding of a likelihood of
confusion.
The Marks
With respect to the first du Pont factor, we must compare the marks in their
entireties as to appearance, sound, connotation and commercial impression to
Application Serial No. 85753740

9

determine the similarity or dissimilarity between them. Palm Bay Imports, Inc. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1691 (Fed. Cir. 2005), quoting In re E. I. du Pont de Nemours & Co., 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. v. Triumph Learning LLC, 101
USPQ2d at 1721 (citation omitted). The focus is on the recollection of the average
purchaser, who normally retains a general rather than a specific impression of
trademarks. See Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB
2014); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
The word “baller” is defined, in relevant part, as follows:
US informal A player of a ball game, especially a talented
basketball player: he’s a baller who will take an open shot
or create one

A successful person, typically one who has a lavish or self-
indulgent lifestyle: who doesn’t feel like a baller sipping
whiskey out of a personalized glass?

(oxforddictionaries.com).
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 National Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985) (“There is nothing improper in stating that, for
Application Serial No. 85753740

10

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.”). With respect to
logo marks, where both a word and a design comprise the mark as in the case of
Registrant’s mark, the word is normally accorded greater weight because the word
is likely to make an impression upon purchasers, would be remembered by them,
and would be used by them to request the goods. In re Viterra Inc., 671 F.3d 1358,
101 USPQ2d 1905, 1911 (Fed. Cir. 2012) (“the verbal portion of a word and design
mark likely will be the dominant portion. … This makes sense given that the literal
component of brand names likely will appear alone when used in text and will be
spoken when requested by consumers.”); see also Sweats Fashions Inc. v. Pannill
Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798 (Fed. Cir. 1987); Giant Food, Inc.
v. Nation’s Food Service, Inc., 710 F.2d 1565, 218 USPQ 390 (Fed. Cir. 1983).
Accordingly, Registrant’s logo mark is dominated by the term BALLERS, which is
similar to the entirety of Applicant’s mark BALLER. The term BALLER comprising
Applicant’s mark is merely the singular version of the literal portion of Registrant’s
mark. See Weider Publ’ns, LLC v. D&D Beauty Care Co., 109 USPQ2d 1347, 1355
(TTAB 2014) (citing Wilson v. Delaunay, 245 F.2d 877, 114 USPQ 339, 341 (CCPA
1957 (Marks “consisting of the singular and plural forms of the same term are
essentially the same mark.”).
Even though the dominant literal portion of Registrant’s logo mark is similar to
the entirety of Applicant’s mark, we must compare the marks in their entireties
Application Serial No. 85753740

11

and, accordingly, we cannot overlook the prominent design portion of Registrant’s
mark. The cited mark is BALLERS with a prominent basketball and crown design.
Applicant’s mark differs from the registered mark in that it lacks the design
feature. Further, the term in each mark is in different stylized lettering. Although
we note the different script and style of the terms in the respective marks (which
Applicant has recounted in great detail), this difference is far subordinate to the
difference created by the design feature. In any event, while the difference in
stylization of the terms BALLER and BALLERS may be apparent when the marks
are compared side-by-side, that is not, as indicated above, the proper test.
In sum, the marks are visually similar to the extent that they include the terms
BALLER and BALLERS respectively, but otherwise they are visually different.
In sound, the terms BALLER and BALLERS would be similarly pronounced in
each mark. There is nothing to suggest that Registrant’s mark would be spoken as
anything but “ballers.”
With respect to the meanings of the marks, the terms BALLER and BALLERS
have virtually the identical meaning as shown by the dictionary listings.4 If
anything, the basketball and crown design feature of Registrant’s mark reinforces
the dictionary meaning of “baller,” that is, a talented basketball player. Overall, we
find the two marks to be similar in meaning, especially when they are considered in
the context of the athletic clothing items of Applicant and Registrant.

4 The other meaning referenced by Applicant, “a person or device which makes balls,”
makes no sense in the context of clothing. Further, the meaning of “baller” in the United
Kingdom is irrelevant to our analysis.
Application Serial No. 85753740

12

While we appreciate the difference in appearance between the two marks, the
marks are likely to be pronounced in the same way, and are likely to convey the
same meaning. Thus, we find that in overall commercial impression they are quite
similar. As indicated earlier, we bear in mind that the “marks ‘must be considered
… in light of the fallibility of memory …,’” In re St. Helena Hosp., 774 F.3d 747, 113
USPQ2d 1082, 1085 (Fed. Cir. 2014), and that the proper focus is on the recollection
of the average customer, who retains a general rather than specific impression of
the marks. Joel Gott Wines LLC v. Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1430
(TTAB 2013). In this case, the similarities outweigh the differences.
We find that, on balance, the marks are more similar than dissimilar and, thus,
this factor weighs in favor of finding a likelihood of confusion between the marks.
Third-Party Marks
The sixth du Pont factor focuses on the number and nature of similar marks in
use on similar goods. In connection with this factor, Applicant relies upon twelve
subsisting third-party registrations, all for various clothing items, athletic apparel
and the like. (Request for Reconsideration, 12/15/14, pp. 5-6, Ex. Nos. 5-16). The
registrations are as follows:

Third-Party Mark Reg. No.
BALLER $TATUS CLOTHING LINE
and design
3064246
ORIGINAL BALLER 3176285
BALLHER 3327822
SCHOLAR-BALLER 3568575
Application Serial No. 85753740

13

ZENBALLER 3594033
QUEEN BALLER and design 3750917
BALLER JEANS 3768796
STREETBALLER 3891476
CERTIFIED BALLER 4303961
OLD SCHOOL RULES
NEW SCHOOL BALLERS
4332844
LADY BALLER 4528652
BALL & CROWN
FOR BALLERS THAT RULE and design
4633566

Applicant argues that Registrant’s mark is weak and entitled to only a narrow
scope of protection as a result of the third-party registrations of similar marks
referenced above. We disagree. While these registrations are probative (in the same
manner as a dictionary definition) of the meaning of the word “baller(s),” they do
not prove that “baller” or “ballers” are commercially weak terms. The registrations
are not by themselves evidence that the marks are in use on a commercial scale or
that the public has become familiar with them. In the present case, there is no
evidence of extensive third-party uses of similar marks, and no corroborating
evidence of use in connection with these third-party registered marks. Cf. Jack
Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports,
S.L.U., ___F.3d___, ___USPQ2d___, No. 14-1789 (Fed. Cir. Aug. 19, 2015); Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671 (Fed. Cir.
2015) (extensive evidence of third-party use and registrations may be probative in
showing that a term is weak and that customers have been educated to distinguish
between different marks on the basis of small distinctions).
Application Serial No. 85753740

14

Long-standing precedent establishes that third-party registrations cannot assist
an applicant in registering a mark that is likely to cause confusion with a
previously registered mark. See Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria
La Michoacana Inc., 98 USPQ2d 1921, 1934 (TTAB 2011); In re Max Capital Group
Ltd., 93 USPQ2d 1243, 1248 (TTAB 2010). As the Board stated in In re Chica Inc.,
84 USPQ2d 1845, 1849 (TTAB 2007):
[A]n applicant does not overcome a likelihood of confusion
refusal by pointing to other registrations and arguing that
they are as similar to the cited registration as applicant's
mark. While third-party registrations may be used to
demonstrate that a portion of a mark is suggestive or
descriptive, they “cannot justify the registration of
another confusingly similar mark.” In re J.M. Originals
Inc., 6 USPQ2d 1393, 1394 (TTAB 1987), quoting Plus
Products v. Star-Kist Foods, Inc., 220 USPQ 541, 544
(TTAB 1983).

See also AMF Inc. v. American Leisure Prods., Inc., 474 F.2d 1403, 177 USPQ 268,
269 (CCPA 1973); Lilly Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d 324, 153 USPQ
406, 407 (CCPA 1967); In re Helene Curtis Indus., Inc., 305 F.2d 492, 134 USPQ
501, 503 (CCPA 1962). Moreover, the Board is not bound by the prior decisions of
examining attorneys in allowing marks for registration. It is well established that
each case must be decided on its own facts. See In re Nett Designs Inc., 236 F.3d
1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if some prior registrations had
some characteristics similar to [applicant’s] application, the PTO’s allowance of
such prior registrations does not bind the Board or this court.”); In re Merrill Lynch,
Pierce, Fenner & Smith Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1142 (Fed. Cir. 1987).
Application Serial No. 85753740

15

We are obligated to assess the registrability of Applicant’s mark on its own merits
and not simply based on the existence of other registrations.
Further, all of the third-party registered marks include additional elements
that serve to distinguish the marks from each other. We acknowledge that the
Federal Circuit and the Board have recognized that weak designations may be
entitled to a narrower scope of protection than an entirely arbitrary or coined word.
See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 73
USPQ2d at 1693; Giersch v. Scripps Networks, Inc., 90 USPQ2d 1020, 1026 (TTAB
2009); In re Box Solutions Corp., 79 USPQ2d 1953, 1957-58 (TTAB 2006); In re
Cent. Soya Co., 220 USPQ 914, 916 (TTAB 1984). However, even if Applicant had
shown that the cited mark is commercially weak, even a weak mark is entitled to
protection against the registration of a similar mark for closely related goods. See
King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 1401 182 USPQ 108,
109 (CCPA 1974).
In view of the above, we find this factor to be neutral or, at best, slightly
weighing in favor of Applicant’s argument that confusion is unlikely.
Actual Confusion
Applicant states that it is unaware of any instances of actual confusion.
However, it is not necessary to show actual confusion in order to establish likelihood
of confusion. See Weiss Associates Inc. v. HRL Associates Inc., 902 F.2d 1546, 14
USPQ2d 1840, 1842-43 (Fed. Cir. 1990). Applicant’s assertion, particularly in this
ex parte proceeding, is entitled to little weight. See In re Majestic Distilling Co., Inc.,
Application Serial No. 85753740

16

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 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 Professionals 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 probative evidence relating to the specific extent of use of either
Applicant’s or Registrant’s mark 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.
Additional Points
Applicant made other feeble arguments, only one of which we will address in
this decision. Applicant states that it is located in Pennsylvania while Registrant is
located in California, a fact that could weigh against the likelihood of confusion.
However, Applicant is seeking a geographically unrestricted registration and
Registrant owns a nationwide registration, giving Registrant presumptive exclusive
rights to nationwide use. Thus, this argument is of little relevance to our analysis.
Application Serial No. 85753740

17

Giant Food, Inc. v. Nation’s Foodservice, Inc., 218 USPQ at 393 (“Applicant seeks a
geographically unrestricted registration under which it might expand throughout
the United States. Under these facts, it is not proper, as the TTAB found, to limit
our consideration to the likelihood of confusion in the areas presently occupied by
the parties. Section 7(b) of the Trademark Act of 1946, 15 U.S.C. §1057(b), creates a
presumption that the registrant has the exclusive right to use its mark throughout
the United States. Therefore, the geographical distance between the present
locations of the respective businesses of the two parties has little relevance in this
case.”).
Conclusion
In reaching our decision in this appeal, we have kept in mind that there is no
per se rule governing likelihood of confusion cases involving wearing apparel. See In
re British Bulldog, Ltd., 224 USPQ 854 (TTAB 1984). However, in numerous cases
in the past, many different types of apparel have been found to be related products
which are sold in the same trade channels to the same classes of purchasers,
including to ordinary consumers, and that confusion is likely to result if the goods
were to be sold under similar marks.5 To state the obvious, we have decided this
appeal based on the specific evidence before us.

5 See, e.g., Cambridge Rubber Co. v. Cluett, Peabody & Co., 286 F.2d 623, 128 USPQ 549
(CCPA 1961) (women’s boots related to men’s and boys’ underwear); Jockey Int’l, Inc. v.
Mallory & Church Corp., 25 USPQ2d 1233 (TTAB 1992) (underwear related to neckties); In
re Melville Corp., 18 USPQ2d 1386 (TTAB 1991) (women’s pants, blouses, shorts and
jackets related to women’s shoes); In re Pix of America, Inc. 225 USPQ 691 (TTAB 1985)
(women’s shoes related to outer shirts); In re Mercedes Slacks, Ltd., 213 USPQ 397 (TTAB
1982) (hosiery related to trousers); In re Cook United, Inc., 185 USPQ 444 (TTAB 1975)
(men’s suits, coats, and trousers related to women’s pantyhose and hosiery); Esquire
Application Serial No. 85753740

18

We have carefully considered all of the evidence made of record pertaining to
the issue of likelihood of confusion, as well as all of the arguments related thereto,
including any not specifically discussed in this opinion. We conclude that
purchasers familiar with Registrant’s “caps; hats; jogging suits; pants; polo shirts;
shoes; sweatpants; T-shirts” sold under the mark BALLERS and design would be
likely to mistakenly believe, upon encountering Applicant’s stylized mark BALLER
for “athletic shirts; sport coats,” that the goods originate from or are associated with
or sponsored by the same entity.
Decision: The refusal to register is affirmed.

Sportswear Mfg. Co. v. Genesco Inc., 141 USPQ 400 (TTAB 1964) (brassieres and girdles
related to slacks for men and young men).