Janet Brown

Trademark Trial and Appeal Board

Apr 6, 2018

No. 86414036 (T.T.A.B. Apr. 6, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: April 6, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Brown
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Serial No. 86414036

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Ryan D. Artis and Justin Allen of Riverside Law LLP,
for Janet Brown.

Karen S. Derby, Trademark Examining Attorney, Law Office 123,
Susan Hayash, Managing Attorney.
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Before Ritchie, Shaw and Greenbaum,
Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:
Janet Brown (“Applicant”) seeks registration on the Principal Register of the
standard character mark PSP STRONG for goods ultimately identified as “clothing
items, namely, shirts, T-shirts, hats, sweatshirts, sweatpants,” in International Class
25.1

1 Serial No. 86414036, filed on October 3, 2014, based upon Applicant’s allegation of a bona
fide intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15
U.S.C. § 1(b).
Serial No. 86414036
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The Examining Attorney refused registration of Applicant’s mark under
Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on a prior registration of the
stylized mark PSP, , for the following goods in International Class 25:2
jackets; suits; skirts; trousers; dresses; raincoats; overcoats; sweaters;
cardigans; vests; cuffs; sports shirt; blouses; polo shirts; shirts for suits;
pajamas; bath robes; T-shirts; undershirts; slips; panties; shorts; briefs;
brassieres; swimwear; swimming caps; aprons for wear; socks and
stockings; shawls; scarves; gloves and mittens for wear; neckties;
neckerchieves [sic]; mufflers; nightcaps; head wear; garters; stocking
suspenders; suspenders; waistbands; belts for clothing; rain boots;
training shoes; sandals; shoes; boots; women’s shoes; infants’ shoes;
masquerade costumes; anoraks; sports over uniforms; headbands for
clothing; wristbands; wind-jackets; golf shoes; soccer shoes; ski boots;
tennis shoes; basketball sneakers; baseball shoes; other special sports
footwear

After the Examining Attorney made the refusal final, Applicant filed a request for
reconsideration and an appeal. When the request for reconsideration was denied, the
appeal was resumed. Both Applicant and the Examining Attorney filed briefs. We
affirm the refusal to register.
I. Likelihood of Confusion
Our determination under Section 2(d) of the Trademark Act is based on an
analysis of the probative facts in evidence that are relevant to the factors bearing on
a likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973); see also Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin

2 Registration No. 3797925, registered June 8, 2010, contains other goods and services in
other classes not subject to this refusal. Partial Section 8 and Section 15 accepted and
acknowledged. Other requirements by the Examining Attorney were considered to be
satisfied and no other refusals were made final.
Serial No. 86414036
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Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re
Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In
considering the evidence of record on these factors, we keep in mind that “[t]he
fundamental inquiry mandated by Section 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods and differences in the marks.”
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976); see also In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014). “Not all of
the [du Pont] factors are relevant to every case, and only factors of significance to the
particular mark need be considered.” Coach Servs., Inc. v. Triumph Learning LLC,
668 F.3d 1356, 101 USPQ2d 1713, 1719 (Fed. Cir. 2012) (quoting In re Mighty Leaf
Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir 2010)).
A. The Goods, Trade Channels and Purchasers
We consider first the similarities or dissimilarities between the respective 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, 1161 (Fed. Cir.
2014) (goods as identified in involved application and cited registration compared);
Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990). Under this second du Pont factor, the Examining Attorney need
not prove, and we need not find, similarity as to each and every good listed. It is
sufficient for a refusal based on likelihood of confusion that relatedness is established
for any good identified in the application. Tuxedo Monopoly, Inc. v. General Mills Fun
Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Apple Computer v.
Serial No. 86414036
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TVNET.Net, Inc., 90 USPQ2d 1393, 1398 (TTAB 2007). It is thus sufficient that both
the application and the cited registration identify the identical goods “T-shirts.”
Furthermore, the application identifies “shirts” generally, while the cited registration
identifies more specifically “shirts for suits,” “sports shirt”; “polo shirts” and
“undershirts,” which would be encompassed therein. Applicant has not disputed the
Examining Attorney’s contention that the respective goods are identical-in-part.
When the respective identifications of goods are identical-in-part and without
restrictions as to nature, type, channels of trade, or classes of purchasers, as is the
case here, the identified goods are presumed to travel in the same channels of trade
to the same class of purchasers. In re Viterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1908 (Fed. Cir. 2012); Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62
USPQ2d 1001, 1005 (Fed. Cir. 2002) (citing CBS Inc. v. Morrow, 708 F.2d 1579, 218
USPQ 198 (Fed. Cir. 1983) (“[A]bsent restrictions in the application and registration,
goods and services are presumed to travel in the same channels of trade to the same
class of purchasers.”). Thus, we presume the trade channels and classes of purchasers
are the same for both Applicant’s and registrant’s goods, and Applicant has not
disputed these presumptions.
B. The Marks
We now compare the marks for similarities and dissimilarities in appearance,
sound, connotation and commercial impression. Palm Bay Imps., Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1692. The test is not
whether the marks can be distinguished when subjected to a side-by-side comparison,
Serial No. 86414036
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but rather whether the marks are sufficiently similar in terms of their overall
commercial impression that confusion as to the source of the goods offered under the
respective marks is likely to result. Coach Servs., Inc. v. Triumph Learning LLC, 101
USPQ2d at 1721. Under actual marketing conditions, consumers do not necessarily
have the luxury of making side-by-side comparisons between marks, and must rely
upon their imperfect recollections. Dassler KG v. Roller Derby Skate Corp., 206 USPQ
255, 259 (TTAB 1980). The focus is on the recollection of the average purchaser, who
normally retains a general rather than a specific impression of trademarks. In re
Assoc. of the United States Army, 85 USPQ2d 1264 (TTAB 2007); Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, the analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entire
marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. Vv. Master Mfg. Co., 667 F.2d
1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be
dissected and considered piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion.”). On the other hand, different features may be
analyzed to determine whether the marks are similar. Joel Gott Wines LLC v.
Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1430 (TTAB 2013) (citing Price Candy Co.
v. Gold Medal Candy Corp., 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955)). In fact,
there is nothing improper in stating that, for rational reasons, more or less weight
Serial No. 86414036
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has been given to a particular feature of a mark, provided the ultimate conclusion
rests on a consideration of the marks in their entireties. In re Nat’l Data Corp., 224
USPQ at 751. Moreover, where, as in the present case, the marks would appear on
virtually identical goods, the degree of similarity between the marks that is necessary
to support a finding of likely confusion declines. Bridgestone Ams. Tire Operations
LLC v. Fed. Corp., 673 F.3d 1330, 102 USPQ2d 1061, 1064 (Fed. Cir. 2012); Century
21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698 (Fed.
Cir. 1992).
In this case, both marks begin with the term PSP and hence have similarities in
appearance and sound. Consumers are generally more inclined to focus on the first
word, prefix, or syllable in any trademark or service mark, which in this case, are
identical. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 73 USPQ2d at 1692 (Fed. Cir. 2005) (“VEUVE … remains a ‘prominent feature’
as the first word in the mark and the first word to appear on the label”). Applicant
argues that her mark is in standard characters, whereas the mark in the cited
registration is stylized. However, we note that marks registered in standard
character form are not limited to any particular font size, style, or color. See In re
Viterra Inc. 101 USPQ2d at 1910, citing Citigroup v. Capital City Bank Group, 637
F.3d 1344, 98 USPQ2d 1253 (Fed Cir. 2011) (analyzing on a case by case basis “does
not require us to alter the basic analysis when a standard character mark is compared
with a stylized or design mark.”).
Serial No. 86414036
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Applicant argues that “The cited PSP mark is generally linked to a stylized
acronym ‘PSP’ for the PlayStation Portable, which is a portable handheld gaming
system. (See Exhibit 1 – Exhibit A submitted on May 14, 2015, screenshots retrieved
from http://us.playstation.com/psp/systems/3000cp.html on 4/20/2015 at 10:35 am
EST).”3 The Examining Attorney objects to Exhibit 1, however, as untimely
submitted.4 While the link was referenced in Applicant’s May 14, 2015 Response to
Office Action, no printout was attached thereto.5 It is well established that
“[p]roviding only the link without the material attached is not sufficient to introduce
it into the record.” Trademark Trial and Appeal Board Manual of Procedure (TBMP)
§ 1208.03 (June 2017). See also In re Fantasia Distrib., Inc., 120 USPQ2d 1137, 1143
n.13 (TTAB 2016) (providing link does not suffice to introduce evidence into record).
Further, as the Examining Attorney observes, “there is no evidence in the record that
consumers will understand that the acronym ‘PSP’ when viewed in connection with
clothing items is understood to mean ‘Playstation Portable’ by consumers.”6 We find,
thus, that there is no evidence that consumers will have a different commercial
impression of the term PSP as it is used in Applicant’s mark or in registrant’s mark.
Applicant next argues that the addition of the term STRONG to her mark
significantly changes the commercial impression. In this regard, the Examining

3 7 TTABVUE 4.
4 11 TTABVUE 4.
5 In the June 4, 2015 Final Office Action, the Examining Attorney pointed out to Applicant
that “the evidence referenced in the response was not attached to the response. Accordingly,
the Examiner objects to any reliance on ‘evidence’ that is not part of the record.”
6 11 TTABVUE 15.
Serial No. 86414036
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Attorney submitted evidence of third-party marks to show that the term STRONG “is
a commonly used term in connection with awareness campaigns and clothing to
indicate internal strength.”7 Examples include COWBOY STRONG, Registration No.
4656428, for t-shirts and other clothing, and disclaiming COWBOY; PINK STRONG,
Registration No. 4487550, for t-shirts, hats, and other clothing, and disclaiming
PINK; USA STRONG, Registration No. 4664946, for t-shirts, shirts, and hats, and
disclaiming USA; SURVIVOR STRONG, Registration No. 4434673, for shirts, hats,
and other clothing; CHRISTIAN STRONG, Registration No. 4662450, for t-shirts,
shirts, and other clothing; and GOD STRONG, Registration No. 4730614, for shirts,
hats, and other clothing.8 The Examining Attorney also submitted several, similar
third-party registrations with the term STRONG, for association and promotional
services (e.g., ANGUS STRONG, KANSAS STRONG, DYSLEXIA STRONG, FARM
STRONG, SCOUTSTRONG, and DUBOIS STRONG), which further support the
point that consumers are likely to perceive the term STRONG, when following
another term, as a campaign in support of the item stated in the first term.9 Thus, we
find consumers are likely to perceive the mark PSP STRONG as an additional line of
goods endorsed by, or affiliated with, registrant’s stylized mark PSP, .

7 June 4, 2015 Final Office Action.
8 Attached to June 4, 2015 Final Office Action at 52-70. The registrations are registered to
different third-party owners.
9 Attached to June 4, 2015 Final Office Action at 54-87. Here, as well, the registrations are
registered to different third-party owners.
Serial No. 86414036
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Finally, Applicant argues that the shared term PSP is “weak.” In particular,
Applicant argues that two “component marks using PSP for clothing” were registered
after the registration date of the cited registration. These are DESTINATION PSP,
in standard characters, Registration No. 4461915, and PSP (and design) ,
Registration No. 3913153. We note, however, that the first mark was registered for
shirts, t-shirts, and other clothing, by Destination PSP, in Palm Springs, California,
with a disclaimer of “PSP.” In this regard, the mark appears to have a different
connotation of “Destination Palm Springs.” As to the second mark, the shirts
identified are “shirts for use by the military, police, fire departments, public safety,
utility, petrochemical, and industrial workforces,” which are specific, industrial
items. Thus, we find these registrations to be distinguishable. The other third-party
registrations submitted by Applicant were not for clothing or related items and are
not very probative. We find no evidence that registrant’s mark is weak or entitled to
a narrow scope of protection.
Overall, we find in analyzing the marks as a whole that they are similar in sight,
sound, commercial impression and connotation, and this du Pont factor also favors
finding a likelihood of confusion.
C. Conclusion
After considering all of the arguments and evidence of record as they pertain to
the relevant du Pont factors, we find that the goods are identical-in-part, and we
presume that they would travel through the same channels of trade to some of the
Serial No. 86414036
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same general consumers. We further find that the marks as a whole are similar in
sight, sound, connotation, and commercial impression. Accordingly, we find a
likelihood of confusion between Applicant’s mark PSP STRONG and the mark in the
cited registration for the goods as identified.
Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed.