Jerry Bryant, Shayne Bryant, and Stacey Glowa

Trademark Trial and Appeal Board

Feb 26, 2018

No. 86944200 (T.T.A.B. Feb. 26, 2018)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
February 26, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Jerry Bryant, Shayne Bryant, and Stacey Glowa
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Serial No. 86944200
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Phillip Thomas Horton, Esq. for Jerry Bryant, Shayne Bryant, and Stacey Glowa.

Aretha C. Somerville, Trademark Examining Attorney, Law Office 107 (J. Leslie
Bishop, Managing Attorney).
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Before Cataldo, Wolfson, and Masiello, Administrative Trademark Judges.
Opinion by Masiello, Administrative Trademark Judge:
Jerry Bryant, Shayne Bryant, and Stacey Glowa (“Applicants”) jointly filed
an application for registration on the Principal Register of the mark THE WORLD
FAMOUS CRAB ISLAND in standard characters for “Hats; T-shirts,” in
International Class 25.1
The Trademark Examining Attorney refused registration under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicants’ mark, as

1 Application Serial No. 86944200 was filed on March 17, 2016 under Trademark Act
Section 1(b), 15 U.S.C. § 1051(b), on the basis of Applicants’ asserted bona fide intent to use
the mark in commerce.
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used in connection with Applicants’ goods, so resembles the mark CRAB ISLAND as
to be likely to cause confusion, or to cause mistake, or to deceive. The cited mark is
registered on the Principal Register in standard character form for “Clothing and
apparel for adults and children, namely, t-shirts, sweat shirts, tank tops and hats,”
in International Class 25.2 When the refusal was made final, Applicants appealed to
this Board. Applicants and the Examining Attorney have filed briefs.
A. Evidentiary matter.
Applicants attached to their brief 15 pages of evidence consisting of the
results of searches on the USPTO’s TESS database and copies of two registrations.3
The Examining Attorney objects to such evidence on the ground that it is untimely.4
The objection is well taken. “Evidence should not be filed with the Board after the
filing of a notice of appeal. If the appellant or the examining attorney desires to
introduce additional evidence after an appeal is filed, the appellant or the
examining attorney should submit a request to the Board to suspend the appeal and
to remand the application for further examination.” Trademark Rule 2.142(d), 37
C.F.R. § 2.142(d); see also Trademark Trial and Appeal Board Manual of Procedure
(TBMP) § 1207.01 (June 2017).5

2 Reg. No. 3971671 issued on May 31, 2011. Section 8 affidavit accepted; Section 15 affidavit
acknowledged.
3 4 TTABVUE 17-31.
4 Examining Attorney’s brief, 6 TTABVUE 4.
5 Even if the evidence had been properly made of record, it would have had little impact on
our decision. Lists of registered marks and their registration numbers convey little relevant
information and have little probative value.
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B. Refusal under Section 2(d).
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on the issue of
likelihood of confusion as set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (CCPA 1973). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities
between the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976).
1. The goods; trade channels; customers.
We first consider the similarity or dissimilarity of the goods as identified in
the application and the cited registration. Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-62 (Fed. Cir. 2014); Octocom
Sys. Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990). Because there are no limitations or restrictions in the goods
identified in either the application or the cited registration, we presume that the
goods encompass all goods of the type identified. In re Jump Designs LLC, 80
USPQ2d 1370, 1374 (TTAB 2006). Applicants’ goods are identical to Registrant’s
goods, because both identify “hats” and “t-shirts.”
Because Applicants’ and Registrant’s goods are identical, we must presume
that the channels of trade and classes of customers are the same. See American
Lebanese Syrian Associated Charities Inc. v. Child Health Research Inst., 101
USPQ2d 1022, 1028 (TTAB 2011); In re Smith and Mehaffey, 31 USPQ2d 1531,
1532 (TTAB 1994). See also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905,
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1908 (Fed. Cir. 2012). The customers for these clothing items include ordinary
consumers (including children) who have no particular sophistication and who
would exercise only an ordinary degree of care in selecting the goods; and we must
base our analysis “on the least sophisticated potential purchasers.” Stone Lion
Capital v. Lion Capital, 110 USPQ2d at 1163 (internal quotation marks omitted).
Accordingly, we find that the du Pont factors relating to the similarity of the goods,
the trade channels through which they travel, and the customers to whom they are
offered favor a finding of likelihood of confusion.
2. The marks.
We consider next the similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and commercial impression. See
Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
F.3d 1369, 73 USPQ2d 1689 (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.” In re i.am.symbolic,
LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1748 (Fed. Cir. 2017) (quoting Coach Servs.
Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir.
2012)) (internal quotation marks omitted). While we must consider each mark in its
entirety, 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 that our ultimate
conclusion rests upon a comparison of the marks in their entireties. In re National
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Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). “Indeed, this type
of analysis appears to be unavoidable.” Id.
The marks are similar in appearance, sound, and meaning to the extent of
the shared element CRAB ISLAND. The additional wording THE WORLD
FAMOUS in Applicant’s mark is a point of difference as to appearance, sound, and
meaning. However, we find that THE WORLD FAMOUS does relatively little to
distinguish the two marks. Customers understand that any merchant would readily
announce that its brand is “world famous” if that claim could plausibly be made.
Indeed, fame can be an aspect of any trademark. See du Pont, 177 USPQ at 567
(requiring that in any analysis of likelihood of confusion, “[t]he fame of the prior
mark” must be considered). Even if viewed simply as puffery, the addition of the
wording THE WORLD FAMOUS does little to distinguish the marks. Therefore,
customers would look to the component CRAB ISLAND in Applicants’ mark as the
indication of source, rather than the words THE WORLD FAMOUS. As the
component CRAB ISLAND is identical to Registrant’s mark in its entirety, a
customer would readily believe that THE WORLD FAMOUS CRAB ISLAND is
merely an iteration of Registrant’s mark in which Registrant has chosen to boast of
its fame.
Applicant argues that CRAB ISLAND is weak.6 Even though the Examining
Attorney admits that CRAB ISLAND is a geographic term,7 we are not persuaded

6 Applicant’s brief at 13, 4 TTABVUE 14.
7 Examining Attorney’s brief, 6 TTABVUE 2-3 (“CRAB ISLAND identifies an area in Destin
Florida, a location not normally associated with clothing ...”) We note that this is not an
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that Registrant’s mark is weak. While a geographic term may, under certain
circumstances, be considered nondistinctive, and therefore weak, “[a] mark that is
registered on the Principal Register is entitled to all Section 7(b) presumptions
including the presumption that the mark is distinctive …” Tea Board of India v.
Republic of Tea Inc., 80 USPQ2d 1881,1899 (TTAB 2006). Although this
presumption is rebuttable, Applicants have presented no evidence to rebut it. Nor is
there any evidence to suggest that the cited mark is weak for any reason other than
nondistinctiveness.
For the reasons stated above, we find that the two marks at issue create
virtually identical commercial impressions. That is, each mark creates the
impression of a brand identified by the term CRAB ISLAND, which may sometimes
be touted as a famous brand. We find that the du Pont factor of the similarity or
dissimilarity of the marks favors a finding of likelihood of confusion.
3. Conclusion.
We have considered all of the arguments and evidence of record, including
those not specifically discussed herein, and all relevant du Pont factors. Applicants’
mark is similar in appearance, sound, meaning, and commercial impression to the
cited mark, and the distinguishing features of Applicants’ mark in fact do little to
distinguish it. The goods at issue are identical and would be marketed to the same
customers through the same trade channels. It also bears mentioning that when
identical goods are at issue, the degree of similarity of the marks that is necessary

admission that Registrant’s mark is primarily geographically descriptive within the
meaning of Section 2(e)(2), 15 U.S.C. § 1052(e)(2).
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to find a likelihood of confusion is not as great as where the goods are disparate.
Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d
1698, 1700 (Fed. Cir. 1992). We find that Applicants’ mark, as used on Applicants’
goods, so resembles the cited registered mark as to be likely to cause confusion or to
cause mistake or to deceive.
Decision: The refusal under Section 2(d) is affirmed.