Lisa Hawkinsv.Green Resources Group, LLC

Trademark Trial and Appeal Board

Jun 12, 2012

No. 91190109 (T.T.A.B. Jun. 12, 2012)

Mailed:
June 12, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Lisa Hawkins

v.

Green Resources Group, LLC
_____

Opposition No. 91190109
_____

T. Robert Rehm, Jr., Blake S. Fricks and Venus Liles of
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,
L.L.P. for Lisa Hawkins.

Varesha Mauney, President of Green Resources Group LLC.
______

Before Zervas, Taylor and Ritchie, Administrative Trademark
Judges.

Opinion by Zervas, Administrative Trademark Judge:

On August 12, 2007, Green Resources Group LLC
(“applicant”) filed an application (Serial No. 77253151) for
registration on the Principal Register of the mark IT’S HIP
TO BE GREEN (in standard character form) for various
International Class 16 goods including paper bags, paper
containers, recycled paper, stationery, bumper stickers,
THIS OPINION IS
NOT A PRECEDENT
OF THE T.T.A.B.
Opposition No. 91190109
2
decals, stickers and calendars.1 The application sets forth
a claim of a bona fide intention to use the mark in commerce
pursuant to Section 1(b) of the Trademark Act, 15 U.S.C.
§1051(b).
Opposer, Lisa Hawkins, opposed registration of
applicant's mark on the ground of priority and likelihood of
confusion. Opposer pleaded ownership of Registration
No. 3465205 for the mark IT’S HIP TO BE GREEN (in standard
character form, on the Principal Register) for “shirts and
hats” in International Class 25. In addition, opposer
alleged priority and first use of IT’S HIP TO BE GREEN for
“shirt and hats” and “various on-line retail store services”
since September 2006.2 According to opposer, applicant’s
use of its mark so resembles opposer’s mark that it is

1 The entire identification of goods of the involved application
is:

Address Books; Adhesive Note Pads and Paper;
Appointment Books, Planners; Writing Pencils, Pens,
Markers; Paper bags; Paper containers; Biodegradable
paper pulp-based to-go containers for food; Recycled
Paper; Stationery, Blank Cards, Cards, Printed Forms,
Journal books, Note cards, Postcards, Printed teaching
materials in the field of environmental conservation
and protection; Bumper Stickers, Decals, Stickers;
Calendars; Books, Magazines, Reference Guides in the
field of Environmental issues; Children's Books,
Coloring Books; Educational Books in the field of
environmental conservation and protection; Flash
Cards, Guide Books, Brochures and teaching materials
in the field of environmental conservation and
protection; Cook Books.

2 Opposer did not specify the items she sold in her on-line
retail store in her complaint.
Opposition No. 91190109
3
likely to cause confusion or mistake or to deceive
purchasers.3 See Section 2(d) of the Trademark Act of 1946,
15 U.S.C. §§ 1052(d).
Opposer also alleged ownership of the standard
character mark IT’S HIP TO BE GREEN in opposer’s application
Serial No. 77614097 (the “’097 application,” filed on
November 13, 2008, claiming first use and first use in
commerce on September 20, 2006) for
on-line retail store services featuring household
goods, clothing, shoes, furniture, bedding and
accessories, bath and body products, pet supplies,
supplements, stationary [sic] and paper[-]goods,
pool and spa treatments, cleaning products,
electronics, lawn and garden products, air
purification products;

and priority and likelihood of confusion between IT’S HIP TO
BE GREEN for such services and applicant’s mark. Because
the filing date of the ‘097 application is later than the
filing date of applicant’s application, opposer may not rely
on this application for priority purposes.
Applicant made several admissions including one
regarding the mark and the goods, discussed infra, in its
answer but denied the remaining salient allegations of the
notice of opposition. Additionally, applicant raised
several affirmative defenses but did not file a brief and
hence did not pursue the affirmative defenses. The

3 Opposer also alleges that applicant’s mark falsely suggests a
connection with opposer. Complaint § 16. Because opposer did
Opposition No. 91190109
4
affirmative defenses therefore are given no further
consideration.
The Record
On December 9, 2010, the Board granted opposer’s
consented motion to submit testimony by affidavit. Thus,
the record consists of:
● the pleadings;

● the file of the involved application;

● opposer’s notice of reliance submitting, inter
alia, a current status and title copy of
Registration No. 3465205 showing the registration
is subsisting and owned by opposer;

● four affidavits with exhibits submitted by opposer,
namely, opposer’s first affidavit; the affidavit of
Loretta Plitnick, a paralegal in opposer’s attorney’s
firm; the affidavit of Scott F. D. Varn, who designed
opposer’s website; and opposer’s rebuttal affidavit;

● one affidavit submitted by applicant, namely, the
affidavit of Varesha Mauney, applicant’s president;4

● applicant’s notice of reliance on a
registration it owns; and

● opposer’s second notice of reliance.

Some of this evidence is duplicative. For example, the
first exhibit submitted by opposer with her affidavit is a
copy of her previously-submitted notice of reliance
(“Attached hereto as Exhibit 1 is a true and accurate copy

not argue this ground for opposition in her brief, we consider it
to have been waived by opposer.
4 Ms. Mauney’s affidavit contains many statements which are
argumentative and pertain to the merits of applicant’s case. In
view thereof, and so that there is no doubt, we make clear that
we do not consider the affidavit as applicant’s brief.
Opposition No. 91190109
5
of a notice of reliance submitted into evidence on my behalf
on November 16, 2010 in connection with this Opposition
(‘Exhibit 1’).”) Hawkins aff. ¶7. Also, the first exhibit
to Ms. Mauney’s affidavit is a copy of applicant’s notice of
reliance. (“Attached hereto as EXHIBIT 1 is a true and
accurate copy of a Notice of Reliance submitted on my behalf
….”) Mauney aff. ¶ 9. The Board has stated on many
occasions that it is not necessary to, and that the Board
prefers that parties not, submit duplicate copies of
material already in the record. Corporacion Habanos, S.A.
v. Guantanamera Cigars Co., 102 USPQ2d 1085, 1092 (TTAB
2012) (“The Board has repeatedly advised parties that it is
not necessary to submit duplicates of material that is
already in the record.”). The Board prefers that parties
refer to the locations in the record where the previously-
submitted evidence is located. Further, the Board relies
heavily on TTABVUE, the Board’s electronic record for
proceedings, and the parties better assist the Board by
identifying the location in the electronic record, by entry
number and page, where previously-submitted evidence is
located. In this instance, opposer and applicant should
have referred to the notices of reliance (including the
location in the electronic record) where the notices of
reliance can be found rather than resubmit the notices of
reliance as exhibits. We see no beneficial purpose to
Opposition No. 91190109
6
opposer’s and applicant’s re-submission of their notices of
reliance.
Additionally, opposer submitted with her second notice
of reliance, inter alia, a copy of (i) applicant’s response
to opposer’s motion to compel in this proceeding;
(ii) applicant’s response to opposer’s supplemental motion
to compel in this proceeding; and (iii) opposer’s request
for reconsideration of the Board’s denial of opposer’s
motion to compel. These documents are not properly filed
via a notice of reliance. See Trademark Rule 2.122;
37 CFR 2.122. Because the documents were also submitted by
opposer and Ms. Plitnick with their affidavits, we have
considered them.
Opposer’s Evidentiary Objections
Opposer has objected to much of Ms. Mauney’s affidavit.
Because the objections go to the weight of the testimony,
and not the admissibility of the affidavit (opposer
stipulated to allow testimony to be taken by affidavit), the
objections are overruled. We have, however, given the
testimony set forth in the affidavit the weight it is due,
mindful that Ms. Mauney is a fact witness.
Background
Opposer is the owner and operator of an online retail
store at www.mypumpkindoodle.com. She does not manufacture
any items; she “works on a drop-ship basis (by and through
Opposition No. 91190109
7
vendors, suppliers and distributors)” for a variety of
products such as stain remover, baby clothes, lighting
supplies, markers, book caddies, stools, shoes, air
fresheners, bookshelves, pipe cleansers, glass drinking
straws, art easels, copper test strips, disinfectant,
nightgowns, grout, calendars, detergents, bleach and
sweaters. Hawkins rebuttal aff. ¶¶ 5 and 15.
Opposer maintained essentially all of her sales-related
information for her business on a computer hard drive. In
March 2008, opposer’s computer hard drive crashed; she hence
has essentially no sales-related documents for the period
prior to March 2008. Hawkins rebuttal aff. ¶ 6.
Applicant provides and promotes educational and
entertainment information about environmental protection and
conservation and promotes and offers for sale educational
and entertainment materials using IT’S HIP TO BE GREEN
including on its website at www.ItsHiptobeGreen.com. Mauney
aff. ¶6. Ms. Mauney testified that she has used IT’S HIP TO
BE GREEN on a line of published materials for entertainment
and educational purposes since 2007, which she distributed
personally and via electronic means. Mauney aff. ¶ 8.
Standing
Because opposer has made her pleaded registration of
record through her notice of reliance, opposer has
established her standing. Cunningham v. Laser Golf Corp.,
Opposition No. 91190109
8
222 F.3d 943, 55 USPQ2d 1842 (Fed. Cir. 2000); Lipton
Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213
USPQ 185 (CCPA 1982).
Priority
a. Shirts and Hats.
Because opposer entered her pleaded registration into
the record, Section 2(d) priority is not an issue for those
goods which are recited in the registration, namely, shirts
and hats. See King Candy Co. v. Eunice King’s Kitchen,
Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974).
b. Stickers and Bumper Stickers.
Opposer also submitted evidence regarding use of her
mark on two of the goods listed in applicant’s
identification of goods (bumper stickers and stickers), and
argues in her brief that she used her mark on these goods
prior to the filing date of applicant’s application.
Because opposer did not plead priority and likelihood of
confusion with respect to these items, we first must
consider whether priority and likelihood of confusion with
respect to stickers and bumper stickers were tried by the
consent of the parties. We may consider the issue only if
we find that the issue was tried by the consent of the
parties. Fed. R. Civ. P. 15(b)(2).
Implied consent to the trial of an unpleaded issue can
be found only where the non-offering party (i) raised no
Opposition No. 91190109
9
objection to the introduction of evidence on the issue, and
(ii) was fairly apprised that the evidence was being offered
in support of the issue. There must be no doubt that the
non-moving party was aware that the issue was being tried.
See TBMP § 507.03(b) (3d ed. 2011) and cases cited therein.
Opposer’s affidavit asserts, inter alia, first use for
stickers and bumper stickers at least as early as September
20, 2006. See, e.g., Hawkins aff. ¶¶ 19 - 22. Applicant
did not object to this evidence and, in fact, Ms. Mauney
discussed at paragraph 12 of her affidavit opposer’s claim
of priority based on stickers and bumper stickers. Thus, we
deem the complaint to have been amended and find that the
issue of priority and likelihood of confusion based on
opposer’s alleged common law use of her mark on stickers and
bumper stickers were tried by the consent of the parties.
See DC Comics v. Pan American Grain Mfg. Co., 77 USPQ2d 1220
(TTAB 2005) (opposer introduced into evidence two unpleaded
registrations and applicant did not object and treated them
as of record, therefore, the Board deemed the pleading
amended pursuant to Fed. R. Civ. P. 15(b)); TBMP ¶ 507.03(b)
(3d ed. 2011).
We now consider whether opposer proved priority of use
of IT’S HIP TO BE GREEN for stickers and bumper stickers,
the only goods which are included in applicant’s
identification for which there is evidence of use prior to
Opposition No. 91190109
10
the filing date of applicant’s application. Opposer
maintains that she licensed a third-party, “Cafe Press,” the
right to use the mark on the its website (www.cafepress.com)
at least as early as September 20, 2006, “on and in
connection with on-line marketing and distribution by
CafePress.com of stationery and paper goods ….” Brief at
15. As support, opposer introduced the following evidence
pertaining to stickers and bumper stickers:
• Opposer’s statement at paragraph 17 of her first
affidavit stating that she “confirms the veracity
of, and otherwise state[s] as true for purposes of
submitting into evidence” that she “used the mark
IT’S HIP TO BE GREEN that is the subject of the
‘097 Application in interstate commerce with the
Business on and in connection with stationary
(sic) and paper goods at least as early as
September 20, 2006”;

• Opposer’s statement at paragraph 20 of her first
affidavit:

Exhibit 4 shows that one of the items
ordered from CafePress.com on September
12, 2006 is a “Sticker (Oval) It’s Hip
to be green” that I offered for sale at
that time in connection with the
Business. I recall that this item was a
paper, oval-shaped car bumper sticker
with the mark IT’S HIP TO BE GREEN
affixed to it;5

• Exhibit 4 to opposer’s first affidavit which is
an “Order Detail” from “Café Press” for “Sticker
(Oval) It’s Hip to be green (mypumppkindoodle)”
reflecting an order dated September 12, 2006,
specifying that 2 stickers were ordered, paid for
by credit card and shipped to Martin Melody of
Ashville, North Carolina;

5 This order from September 12, 2006 is reflected in the “order
history” from cafepress.com submitted as exhibit 4 of opposer’s
rebuttal affidavit.
Opposition No. 91190109
11

• Opposer’s statement at paragraph 22 of her first
affidavit that “Since at least as early as
September 20, 2006, I have used without
interruption and presently continue to use the
mark IT’S HIP TO BE GREEN in interstate commerce
in connection with the Business on and in
connection with stationery and paper goods on the
Site and by and through Café Press.com pursuant to
the license ….”

Opposer’s testimony regarding first use at least as
early as September 20, 2006 on stationery and paper goods
(which includes stickers) is undercut by the fact that she
relies on Exhibit 4, the “Order Detail,” for support for her
testimony. We have considered Exhibit 4 at length and have
substantial concerns about relying on it and any testimony
based on it. First, the “Shipping Information” provided on
the “Order Detail” shows the same address that the applicant
provided as her address in the involved application, and
opposer has not explained why her address and the shipping
address are the same. Second, opposer maintains that her
date of first use of her mark on paper goods is
September 20, 2006, while the “Order Detail” has an order
date of September 12, 2006, over a week earlier. This
suggests to us that the “Order Detail” does not reflect a
bona fide sale; we therefore accord the Order Detail limited
weight in establishing opposer’s first use date. We also
give limited weight to opposer’s testimony which refers to
the “Order Detail,” namely her testimony at paragraph 20 of
Opposition No. 91190109
12
her first affidavit, insofar as it pertains to stationary
and paper goods.
There is no other documentary evidence that opposer
relies on to support her claim of first use of September 20,
2006 for paper goods. As noted earlier in this decision,
opposer explained that she had no invoices or other
documentary evidence reflecting sales prior to May 2008
because her hard drive on her computer crashed. Hawkins
rebuttal aff. ¶ 6. Thus, save for the “Order Detail” from
2006, there is no supporting documentary evidence reflecting
sales in the record for stickers and bumper stickers during
this critical time period involving the question of
priority.6
In addition, there is nothing in the record or in
opposer’s brief that we have located that indicates that
opposer is engaged in, e.g., private label drop shipping.
Also, the orders in the record which we have reviewed,
particularly at Exhibit 2 of the Hawkins rebuttal affidavit,
does not indicate that IT’S HIP TO BE GREEN appears on the
goods received by opposer’s customers. Further, there are
no contracts with manufacturers in the record reflecting an

6 Opposer has not offered any explanation as to how she accessed
the Order Detail, which is documentary support for her asserted
first use date, but other documents prior to 2008 no longer
exist.
The “Order History” from Café Press located at Exhibit 4 of
opposer’s rebuttal affidavit identifies other orders in 2006 and
2007, but does not identify what items were purchased.
Opposition No. 91190109
13
obligation to place IT’S HIP TO BE GREEN on stickers or
bumper stickers.
In addition, opposer introduced into evidence a copy of
her webpage from February 8, 2007, accessed from the
“Internet Way Back Machine” at http://web.archive.org.
According to Mr. Varn who developed opposer’s website, the
web page was the same webpage that was “displayed on Ms.
Hawkins’ web site at www.mypumkindoodle.com during September
of 2006.” Varn aff. ¶ 6. The webpage, which is depicted
below, makes no reference to stationery or paper goods and
does not contain any links to other web pages where it is
clear that paper goods are sold:

Ex. A to Varn Affidavit.

Opposition No. 91190109
14
In view of the forgoing, we are not persuaded by
opposer’s evidence, including opposer’s statements in her
affidavit at paragraphs 17 and 22, which do not refer to
Exhibit 4, that opposer first used the mark IT’S HIP TO BE
GREEN on stickers and bumper stickers on September 20, 2006.
At a minimum, it is unclear whether opposer is relying on
the sale to Martin Melody at opposer’s address – which we
give limited weight to - in testifying that opposer first
used the mark IT’S HIP TO BE GREEN on September 20, 2006.
Thus, opposer has not established that it has priority of
use for stickers and bumper stickers.
c. Retail Sales.
As noted above, opposer pleaded that she used IT’S HIP
TO BE GREEN for “various on-line retail store services”
since September 2006. At paragraphs 11 and 12 of her first
affidavit, she testified that she used her mark as early as
September 20, 2006 “in proximity to text describing and
pictures displaying various products that were being offered
for sale on the [Web] Site at least as early as September
20, 2006, including clothing items, bath and body products,
air fresheners, disinfectants and cleaning products.” See
also Hawkins aff. ex. 3 (a copy of the February 8, 2007
webpage which Mr. Varn testified was used in September
2006). Based on this testimony and on Exhibit 3 of Ms.
Hawkins first affidavit, as well as Mr. Varn’s testimony
Opposition No. 91190109
15
regarding the content of the website he created, we find
that opposer has established priority of use for on-line
retail store services featuring clothing items, bath and
body products, air fresheners, disinfectants and cleaning
products. We specifically point out that the evidence does
not reflect that opposer offered paper products in September
2006 and hence opposer has not established that she has
priority of use for retail sales of paper products, which
would include stickers and bumper stickers.
Likelihood of Confusion
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 issue of likelihood of
confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic
Distilling Company, Inc., 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 §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).

Opposition No. 91190109
16
Similarity or Dissimilarity of
Goods, Services and Trade Channels

We have found that priority is not an issue for the
goods set forth in opposer’s registration (shirts and hats)
and that opposer established her priority for on-line retail
store services featuring clothing items, bath and body
products, air fresheners, disinfectants and cleaning
products. For the analysis which follows, we will assume
that opposer has priority through common law use for shirts
and hats. Thus, we turn to the first du Pont factor
regarding the similarity or dissimilarity of opposer’s
shirts and hats and on-line retail store services, and
applicant’s goods as set forth in the identification of
goods.
Although opposer did not point this out in her brief,
applicant admitted in its answer the allegations of
paragraph 10 of the notice of opposition that “some or all
of the goods in connection with which applicant proposed to
use its alleged ‘IT’S HIP TO BE GREEN’ mark are
substantially related to (i) the goods that Opposer markets,
promotes, offers for sale, and/or sells under Opposer’s
registered IT’S HIP TO BE GREEN mark and/or (ii) the on-line
retail store services that Opposer markets, promotes, offers
for sale, and/or sells in connection with Opposer’s
business.” We accord limited weight to this admission for
several reasons. First, opposer did not rely on this
Opposition No. 91190109
17
admission in her brief. Second, applicant has essentially
retreated from its admission, by stating at paragraph 11 of
the Mauney affidavit that the use of its mark on the goods
set forth in the identification of goods in the involved
application are “a natural extension of trade” from its own
educational and entertainment services; and that “Opposer’s
current activities of selling non-branded, non-labeled
products … manufactured by other companies in this disputed
class at mypumkindoodle.com … is not a natural extension of
her current trademark protection for manufacture of shirts
and hats.” Additionally, at paragraph 12 of her affidavit,
Ms. Mauney states that opposer’s goods sold on Café Press
“do not compete with Applicant’s use in this Class ….”
Third, we consider applicant’s pro se status in the
proceeding and the Supreme Court’s statement in Erickson v.
Pardus, 551 U.S. 89, 94 (2007) that a “document filed pro se
is to be liberally construed ….” Fourth, it our duty to
decide, based on the facts, whether there is a likelihood of
confusion.
We considering these two du Pont factors involving the
goods, services and trade channels, we apply the following
principles:
• the goods and/or services need not be identical
or even competitive in order to support a finding
of likelihood of confusion; it is sufficient that
the goods and/or services are related in some
manner or that the circumstances surrounding their
marketing are such that they would be likely to be
Opposition No. 91190109
18
encountered by the same persons in situations that
would give rise, because of the marks used
thereon, to a mistaken belief that they originate
from or are in some way associated with the same
producer or that there is an association between
the producers of the services; see In re Melville
Corp., 18 USPQ2d 1386 (TTAB 1991); In re
International Telephone & Telegraph Corp., 197
USPQ 910 (TTAB 1978); and

• in order to sustain an opposition, it is only
necessary that we find likelihood of confusion
with respect to at least one item in each class of
applicant's goods or services; see Tuxedo
Monopoly, Inc. v. General Mills Fun Group, Inc.,
648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)
(“likelihood of confusion must be found if the
public, being familiar with [opposer's] use of
MONOPOLY for board games and seeing the mark on
any item that comes within the description of
goods set forth by appellant in its
application ….”).

a. T-shirts and hats vs. applicant’s goods

To establish a prima facie relationship between the
goods, opposer relies on the following evidence submitted
with Ms. Plitnick’s affidavit:
• webpages from internet “shopping malls”
(ecomall.com and ecobunga.com) for
environmentally-conscious goods and services
which, according to opposer at p. 18 of her brief,
“link ‘the ‘mall’ web site to the web sites of
hundreds of different companies, through which the
environmentally-conscious goods and services of
all those different companies are marketed,
promoted, and sold under different product
categories”; and

• webpages from online retailers offering
environmentally-conscious goods and services, such
as letsgogreen.biz, tenthousandvillages.com,
rawganique.com, greenhome.com and target.com.

Opposition No. 91190109
19
The evidence of record does not persuade us that
opposer’s and applicant’s goods are related and travel in
the same channels of trade.
The material from ecomall.com merely lists categories
of goods offered by particular companies, e.g., “BALI KARMA
Beautiful Gifts for a Better World. Hand Made, Fairly
Traded Balinese Art, Housewares, Textiles, Musical
Instruments, Clothing and Other Crafts”; and “ECO-BAGS
PRODUCTS, INC[.] Blank Canvas Reusable Bags, Lunch Bags,
Produce Bags for Crafts & Printing.” From this
presentation, and from the broadly worded descriptions of
goods, as well as the fact that there are widely disparate
goods listed such as scarves, photo albums, pizza dough,
statues, lighting, furniture, nuts and chopsticks, we find
this material has no probative value on the issue of the
similarity or dissimilarity of the goods and services and
their trade channels. The webpages from ecobungas.com
identify “green giveaways & deals” and essentially list
deals from various companies in the nature of coupons or
“specials” or price reductions; none of the companies
featured in the webpages are identified as offering both
opposer’s and applicant’s goods. In addition, the material
does not indicate whether the listed vendors have active
websites or offer their goods under the same or similar
marks. A true mall contains thousands of different products
Opposition No. 91190109
20
sold by different vendors; all products sold in the mall do
not travel in the same channels of trade simply because they
are offered for sale in the mall.
Opposer also relies on various webpages from vendors of
various goods. These webpages have no probative value. The
letsgogreen.biz website does not include clothing items; the
tenthousandvillages.com website includes disparate goods
such as necklaces and napkins, and contains links to over
forty categories of goods (e.g., furniture, earrings, bowls,
wall art), and there is no indication as to what marks are
used on the goods or whether they are offered on the same or
related webpages, and the webpage showing the “Alpaca
Mountain Hat” groups the goods listed based on a search of
the database for the term “green”; the rawganique.com
website does not offer the relevant goods for sale and
contains “popular links” and “New & Coming Soon” to a wide
variety of goods, with no indication that the links are on
the same website, if any goods are listed on the webpages
which are linked, and which goods are “coming soon”; the
greenhome.com webpages offer a broad variety of goods such
as appliances, lighting, pest control and clothing (akin to
a big-box retailer) and show the relevant goods on different
webpages organized according to product categories; and the
target.com webpages show the results for a search for “eco
Opposition No. 91190109
21
friendly” and hence have been ordered to respond to a
particular search.
Only two webpages in the record demonstrate the
relevant goods travel in the same trade channels, and
applicant, not opposer, submitted both of these webpages.
Specifically, the cafepress.com webpages show “stickers”
adjacent to a “t-shirt” bearing the same mark and opposer’s
own pumpkindoodle.com webpage shows shirts and stickers on
the same webpage. However, these two pages are insufficient
to establish that the goods travel in the same trade
channels or are related.
b. On-line retail store services featuring clothing
items, bath and body products, air fresheners,
disinfectants and cleaning products

Opposer has not introduced any persuasive evidence into
the record that establishes a relationship between opposer’s
on-line retail store services featuring clothing items, bath
and body products, air fresheners, disinfectants and
cleaning products, and applicant’s goods, which include
including paper bags, paper containers, recycled paper,
stationery, bumper stickers, decals, stickers and calendars.
There also is no evidence in the record suggesting that the
trade channels for opposer’s services are related to the
trade channels for such goods.

Opposition No. 91190109
22
c. Summary
Opposer is thus left in the position of not having
sufficient evidence in the record to establish that
opposer’s (i) shirts and hats, and (ii) retail sales of
clothing, bath and body products, air fresheners,
disinfectants and cleaning products, are related to
applicant’s goods set forth in applicant’s identification of
goods.
The Marks
We consider the similarity or dissimilarity of the
marks in view of their sound, appearance, meaning, and
commercial impression. Palm Bay Imports, Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689 (Fed. Cir. 2005). Because the standard
character marks are identical, and there is no apparent
significance to the marks as applied to any of the involved
goods and services, we find that the marks are identical in
sound, appearance, meaning, and commercial impression.7
Strength of Opposer’s Mark
Opposer argues that her mark is strong and entitled to
broad legal protection in view of her marketing efforts on
Facebook, Twitter and focused internet blogs. She states
that over twelve thousand individuals and entities have

7 Applicant admitted in its answer that opposer’s registered mark
and applicant’s mark are spelled the same, and are identical in
sound and appearance. Answer ¶ 9.
Opposition No. 91190109
23
given her positive feedback on the goods she offers and the
online retail services she provides; that her IT’S HIP TO BE
GREEN Facebook page was visited by other Facebook members a
total of approximately thirteen thousand five hundred times;
that opposer’s mark appears at least thirty-five times on
opposer’s Twitter home page; and that the examining attorney
recommended that opposer withdraw her claim of acquired
distinctiveness, which she made early in her application.
While applicant has not given us any reason to believe that
opposer’s mark is not inherently distinctive and inherently
strong, opposer’s evidence fails to establish that opposer’s
mark is well-known or famous. Thus, we accord opposer’s
mark the usual scope of protection we would accord an
inherently distinctive mark, and the principles cited by
opposer from Kenner Parker Toys, Inc. v. Rose Art Indus.
Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed. Cir. 1992)
(“A strong mark casts a long shadow which competitors must
avoid …”; and R.J. Reynolds Tobacco Co. v. R. Seelig &
Hille, 201 USPQ 856, 860 (TTAB 1978) (“It is well recognized
that the law today rewards a famous or well known mark with
a larger cloak of protection than in the case of a lesser
known mark”), are inapposite to this case.
Conditions of Purchase
We now turn to opposer's argument at p. 40 of her brief
that opposer's goods “are relatively inexpensive, general in
Opposition No. 91190109
24
nature, and subject to frequent replacement in most cases.”
The record supports opposer’s argument, as clearly the goods
herein are subject to impulse buying by consumers who will
not accord much care to their purchasing decisions.
Doubt
Opposer maintains that if we have any doubt on this
issue of likelihood of confusion we should resolve that
doubt in favor of the senior user, citing In re Shell Oil
Co., 992 F.2d 1204, 26 USPQ2d 1687 (Fed. Cir. 1993) (“Doubt
is resolved against the newcomer, … [because] the newcomer
has the opportunity to avoid confusion, and is charged with
the obligation of doing so.”). We do not have doubt on this
issue of likelihood of confusion in this case based on the
record created by the parties.
Conclusion
In view of the foregoing, we find that opposer has not
established both priority and a likelihood of confusion for
any of the goods and services pleaded in her notice of
opposition or tried by the consent of the parties.
DECISION: The opposition is dismissed.