Lone Wolf Distributors, Inc.

Trademark Trial and Appeal Board

Mar 20, 2013

No. 85058680 (T.T.A.B. Mar. 20, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
March 20, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Lone Wolf Distributors, Inc.
_____

Serial No. 85058680
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Robert C. Hyta of Wells St. John P.S. for Wolf Distributors, Inc.

Jessica Powers Ludeman, Trademark Examining Attorney, Law Office 104 (Chris
Doninger, Managing Attorney).
_____

Before Quinn, Bergsman and Lykos, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Lone Wolf Distributors, Inc. (“applicant”) filed an intent-to-use application to
register the mark TIMBER WOLF, in standard character form, for “slide action
pistol frames,” in Class 13.
The Trademark Examining Attorney refused registration under Section 2(d)
of the Trademark Act of 1946, 15 U.S.C. § 1052(d), on the ground applicant’s mark
so resembles the registered marks shown below all owned by the same registrant.
Serial No. 85058680

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1. Registration No. 3200103 for the mark TIMBER WOLF, in standard
character form, for “pocket knives,” in Class 8;1
2. Registration No. 3704577 for the mark TIMBER WOLF, in standard
character form, for “knives, namely, folding knives, caper knives, knives with gut
hook, sports knives for skinning, bowie knives, throwing knives and fillet knives;
swords; hand tools, namely, pruners; multi-function hand tools containing cutting
blades and knives, screwdrivers, pliers, can and bottle openers, files and accessory
screwdriver bits,” in Class 9;2 and
3. Registration No. 3704576 for the mark TIMBER WOLF and design,
shown below, for “knives, namely, folding knives, caper knives, knives with gut
hook, sports knives for skinning, bowie knives, throwing knives and fillet knives;
swords; hand tools, namely, pruners; multi-function hand tools containing cutting
blades and knives, screwdrivers, pliers, can and bottle openers, files and accessory
screwdriver bits,” in Class 9.3

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

1 Issued January 23, 2007; Sections 8 and 15 affidavits accepted and acknowledged.
2 Issued November 3, 2009.
3 Issued November 3, 2009.
Serial No. 85058680

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likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). See also, In re Majestic Distilling Company, Inc., 315
F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). 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) (“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”).
A. The similarities or dissimilarities of the marks in terms of appearance,
sound, meaning and commercial impression.

Applicant’s mark is identical to registrant’s TIMBER WOLF word marks.
With respect to registrant’s composite mark, the words are identical. Because a
timber wolf is a gray wolf,4 the wolf’s head design emphasizes the name TIMBER
WOLF and does not distinguish registrant’s composite mark from applicant’s word
mark. Moreover, in the case of marks consisting of words and a design, the words
are normally given greater weight because they would be used by consumers to
request the products. In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB
1999); In re Appetito Provisions Co., 2 USPQ2d 1553, 1554 (TTAB 1987). See also
Sweats Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798

4 THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE (UNABRIDGED), p.
1984 (2nd ed. 1987). The Board may take judicial notice of dictionary definitions, Univ. of
Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703
F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
Serial No. 85058680

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(Fed. Cir. 1987); Giant Food, Inc. v. Nation’s Food Service, Inc., 710 F.2d 1565, 218
USPQ 390 (Fed. Cir. 1983)
B. Degree of consumer care.
According to applicant, “slide action pistol frames are very specific
components made for the replacement of parts on specific guns.”5 As such, it is an
“aftermarket gun component.”6 “These types of frames are for retrofit use on a
specific model and make of handgun, which means they must generally be custom
sized to fit that handgun.”7 We have considered applicant’s explanation to shed
light on the nature of a slide action pistol frame. In re Trackmobile Inc., 15
USPQ2d 1152 (TTAB 1990) (“… when the description of goods for a cited
registration is somewhat unclear, as is the case herein, it is improper to simply
consider that description in a vacuum and attach all possible interpretations to it
when the applicant has presented extrinsic evidence showing that the description of
goods has a specific meaning to members of the trade.” (internal citations omitted)).
See also In re W.W. Henry Co., 82 USPQ2d 1213, 1215 (TTAB 2007).
Nevertheless, neither the Trademark Examining Attorney, nor applicant,
described with any degree of particularity a slide action pistol frame so a lay person
could understand the nature of the product. Accordingly, we look to standard
reference sources for some guidance.
A “frame” has the following definition:

5 Applicant’s Brief, p. 1.
6 Applicant’s Brief, p. 2.
7 Applicant’s Brief, p. 4.
Serial No. 85058680

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1. a border or case for enclosing a picture, mirror, etc.
2. a rigid structure formed of relatively slender pieces,
joined so as to surround sizable empty spaces or
nonstructural panels, and generally used as a major
support in building or engineering works, machinery,
furniture, etc.8
“Slide action” is defined as follows:
(of a rifle or shotgun) having a lever that when slid back
and forth ejects the empty case and cocks and reloads the
piece.9
Based on the foregoing, we find that a slide action pistol frame must be the
structural unit of a pistol that connects the barrel with the grip and slides when
fired. As described by applicant, it is a component of a gun.
Applicant argues that a customer for a slide action pistol frame is someone
who is sophisticated enough to be able to replace the component on an existing
gun.10 In fact, the consumer must be someone knowledgeable enough to know that
you can replace or modify a pistol frame.
Persons who purchase an aftermarket handgun
component part typically have a handgun (a Glock for
example) and wish to replace the frame or slide on that
handgun to replace a damaged part or get one that meets
their performance or comfort desires. Other potential
purchasers may be gunsmiths and those in the business of
customizing guns for others. Both of these types of
purchasers are sophisticated and knowledgeable
purchasers that for one reason or another (typically
performance or comfort) want to change a stock
component on another manufacturer’s gun.

8 THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE (UNABRIDGED), p.
760 (2nd ed. 1987).
9 Id. at 1798.
10 Applicant’s Brief, p. 2.
Serial No. 85058680

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It should be noted that these are not simple or routine off
the shelf types of purchases in which one might fit
numerous different existing guns, and are not a
commodity type of product due to the dangerous nature of
handguns in general and because they are generally
seeking a higher level of performance or comfort (or both)
for an existing gun they own or are modifying.
The Specific Nature of the Purchase. The purchasers
seek out the specific component or manufacturer whose
parts/components they have come to prefer or trust –
Lone Wolf Distributors in this instance and the TIMBER
WOLF frame. They know exactly who they are dealing
with and whose part they are purchasing as it is generally
customized to their situation or desired modification to
their gun.11 (Emphasis in the original).
In response, the Trademark Examining Attorney points out that applicant
did not present any corroborating evidence and offers the boilerplate response that
even if consumers are sophisticated and knowledgeable consumers in a particular
field that does not mean that they are not immune to source confusion. While it
would have been more persuasive for applicant to have supported this argument
with a declaration by someone in the business, we find that applicant’s explanation
articulates the obvious: that is, a slide action pistol frame is not an off-the-shelf
product; rather, it is purchased after examination and inspection by a purchaser
with a specific purpose for the product or to satisfy the consumer’s personal taste
(e.g., performance or comfort). As indicated above, retro-fitting a slide action pistol
frame “means they must generally be custom sized to fit that handgun.” Moreover,
the purchaser is a gun enthusiast or professional with a heightened interest and
greater involvement in the purchasing process than a consumer purchasing an off-

11 Applicant’s Brief, pp. 3-4.
Serial No. 85058680

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the-shelf gun. The purchasing process plays a significant role in this case because
the test is not simply a side-by-side comparison of the marks but rather is one of
consumer confusion in light of the manner in which consumers purchase these
products. This discrete class of purchasers would be highly familiar with the
nature, use and purpose of applicant’s product. See Electronic Design & Sales Inc.
v. Electronic Data Systems Corp., 954 F.2d 713, 21 USPQ2d 1388, 1391 (Fed. Cir.
1992) (“sophistication is important and often dispositive because sophisticated
consumers may be expected to exercise greater care;” finding no likelihood of
confusion resulting from the contemporaneous use of E.D.S. and EDS despite the
fact that “the two parties conduct business not only in the same fields but also with
some of the same companies.”). See also J. Thomas McCarthy, MCCARTHY ON
TRADEMARKS AND UNFAIR COMPETITION § 23:101 (4th ed. 2013) (“Where the
relevant buyer class is composed solely of professional, or commercial purchasers, it
is reasonable to set a higher standard of care than exists for consumers.”). The
degree of care exercised by consumers for slide action pistol frames greatly weighs
in favor of applicant and is corroborated by the inability of the Trademark
Examining Attorney to introduce even a single reference to a pistol frame, let alone
a slide action pistol frame. See the discussion below. This demonstrates that the
nature of applicant’s product is unusual and illuminates what actually happens in
the marketplace.

Serial No. 85058680

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C. The similarities or dissimilarities and nature of the goods described in the
application and registrations.

In determining whether the goods are related, it is not necessary that the
goods of applicant and registrant be similar or competitive in character to support a
holding of likelihood of confusion; it is sufficient for such purposes that a party
claiming damage establish that the goods are related in some manner and/or that
conditions and activities surrounding marketing of these goods are such that they
would or could be encountered by same persons under circumstances that could,
because of similarities of marks used with them, give rise to the mistaken belief
that they originate from or are in some way associated with the same producer.
Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399. 1410 (TTAB 2010);
Schering Corporation v. Alza Corporation, 207 USPQ 504, 507 (TTAB 1980); Oxford
Pendaflex Corporation v. Anixter Bros. Inc., 201 USPQ 851, 854 (TTAB 1978).
To show that applicant’s “slide action pistol frames” are related to knives, the
Trademark Examining Attorney submitted the evidence listed below. The evidence
references guns, gun accessories and some gun parts, but not pistol frames
specifically.
1. Excerpts from the Smith & Wesson website (smith-wesson.com)
displaying a Smith & Wesson rubber grip laser aiming system for hand gun and
knives.12
2. An excerpt from the Colt website (coltsmfg.com) displaying an
advertisement for gun parts (e.g., barrels, grips, stock assembly, etc.) and an excerpt

12 April 19, 2011 Office action.
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Serial No. 85058680

10

In addition, the Trademark Examining Attorney has submitted eight use-
based, third-party registrations for products purportedly listed in both the
application and registration at issue. However, no registration lists a slide action
pistol frame or even a pistol frame. Third-party registrations which individually
cover a number of different services that are based on use in commerce may have
some probative value to the extent that they serve to suggest that the listed services
are of a type which may emanate from the same source. In re Albert Trostel & Sons
Co., 29 USPQ2d 1783, 1785-1786; In re Mucky Duck Mustard Co. Inc., 6 USPQ2d
1467, 1470 n.6 (TTAB 1988). The registrations are listed below.18
Mark Reg. No. Relevant Overlapping Goods

Stag’s head
design19
1214560 Pocket, hunting and fishing knives; shotguns,
rifles, recoil pads, sight beads, chokes for
shotguns, scope mount rings and bases, rifle
slings and swivels, and magazine plugs

BROWNING and
Design
BROWNING
1214561

1620728
Pocket, hunting and fishing knives; shotguns,
rifles, recoil pads, sight beads, chokes for
shotguns, scope mount rings and bases, rifle
slings and swivels, and magazine plugs

P 1398213 Sportsmen’s knives and knife scabbards;
custom rifles, shotguns and hand guns; pistol
conversion units, gun accessories, namely,
grips, slide stops, recoil pads, recoil pad
spacers, etc.

18 For purposes of this list, we have included only the relevant overlapping goods as
identified in either the application or the cited registration.
19 Owned by Browning.
Serial No. 85058680

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Mark Reg. No. Relevant Overlapping Goods

GLOCK
PERFECTION
2440268 Field knives; pistols

MOSSBERG 3659939 Hunting knives; soft air guns

SPORTS
AFIELD
3788258 Hunting knives; shotguns and parts thereof,
sporting rifles

Knight’s head
design
3258109 Hunting and sport knives; muzzle loading
rifles

The Trademark Examining Attorney contends that she has “provided a
substantial amount of evidence demonstrating that the same entity commonly
manufactures both gun frames and knives,” citing the Smith & Wesson, Colt, and
the Cabela’s websites noted above.20 We disagree. The Cabela’s website advertises
the sale of a rifle, not a rifle frame. The excerpt from the Smith & Wesson website
advertises the sale of a grip with a laser aiming system, not a pistol frame. The
excerpt from the Colt website identifies pistol components, but not a pistol frame.21
D. Similarity of established likely-to-continue trade channels.
The evidence regarding trade channels is set forth below.
1. The homepage for the Impact Guns website (impactguns.com) an
online retailer of firearms, including handguns, as well as knives.22
2. The Custom Knives and Guns website.

20 Trademark Examining Attorney’s Brief, p. 5 (unnumbered), n. 4.
21 As indicated above, the Board does not purport to be knowledgeable about guns.
Accordingly, it is incumbent upon the Trademark Examining Attorney to point out which of
the components in the Colt website comprise the frame as no component is identified as a
frame.
22 September 20, 2010 Office action.
Serial No. 85058680

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3. The Your-gun.com website lists a “Catalog of information” with links to
handgun manufacturers, handgun accessories, and knives.23
Like the evidence regarding the nature of goods, the evidence shows that
guns and knives move in the same channels of trade and are sold to the same
classes of consumers. However, the evidence does not reference sales of knives and
gun parts in general or slide action pistol frames in particular. Based on this
record, we will not infer that the channels of trade for knives and slide action pistol
frames are similar.
E. Balancing the factors.
Although the marks are identical, because of the high degree of consumer
care, the differences in the nature of the goods and their channels of trade, we find
that applicant’s mark TIMBER WOLF for use in connection with slide action pistol
frames is not likely to cause confusion with the marks TIMBER WOLF or TIMBER
WOLF and design for knives.
Decision: The refusal to register is reversed.

23 April 19, 2011 Office action.