Millersport, Inc.

Trademark Trial and Appeal Board

Aug 28, 2006

No. 76590093 (T.T.A.B. Aug. 28, 2006)

Mailed: August 28, 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

Trademark Trial and Appeal Board
___________

In re Millersport, Inc.
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Serial No. 76590093
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Myron Amer, Esq. for Millersport, Inc.

Katherine Stoides, Trademark Examining Attorney, Law Office
101 (Ronald R. Sussman, Managing Attorney).
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Before Quinn, Hohein and Walters, Administrative Trademark
Judges.

Opinion by Walters, Administrative Trademark Judge:

Millersport, Inc. has filed an application to register
on the Principal Register in standard character form the
mark GOLDEN GLOVE for “baseball gloves for Little League
baseball players,” in International Class 28.1
The examining attorney has issued a final refusal to
register under Section 2(d) of the Trademark Act, 15 U.S.C.
§1052(d), on the ground that applicant’s proposed mark is

1 Serial No. 76590093, filed April 30, 2004, based on an allegation of a
bona fide intention to use the mark in commerce.
THIS DISPOSITION
IS NOT CITABLE AS
PRECEDENT OF
THE TTAB
Serial No. 76590093
2
likely to cause confusion with the mark GOLD GLOVE,
registered for “baseball gloves and mitts,” in International
Class 28.2 The registration includes a disclaimer of GLOVE.
The final refusal is also based on a requirement, under
Section 6 of the Trademark Act, 15 U.S.C. §1056, to disclaim
GLOVE apart from the mark as a whole on the ground that the
term is merely descriptive in connection with the identified
goods.
Applicant has appealed and filed a main brief and reply
brief, but did not request an oral hearing. The examining
attorney has also filed a brief.
Disclaimer
The examining attorney contends that the GLOVE portion
of applicant’s mark is merely descriptive in connection with
the identified goods; that the mark is not unitary such that
it creates a commercial impression separate and apart from
any unregistrable components; and, thus, that the term
should be disclaimed apart from the mark as a whole.
Applicant contends that no disclaimer is required
because the mark GOLDEN GLOVE is “a unitary two-word
sequence of an adjective (GOLDEN) and noun (GLOVE)” (brief,
p. 3), and because “[a]pplicant’s mark of ‘glove’ in the
singular is an ‘incongruity’ for goods consisting of

2 Registration No. 1291345, issued on August 21, 1984, to Rawlings
Sporting Goods Company, Inc. (renewed; Section 15 declaration
acknowledged).

Serial No. 76590093
3
‘gloves’ in the plural,” citing TMEP §1213.05 entitled
“‛Unitary’ Marks” (response of November 9, 2005, p. 2).
There is no question that GLOVE is merely descriptive
in connection with applicant’s identified goods as it is
the name of the goods. The fact that the goods are a
particular type of glove, i.e., baseball gloves, does not
render the individual term GLOVE in the mark non-
descriptive. Thus, the remaining question before us is
whether GOLDEN GLOVE is a unitary mark that is exempt from
disclaimer of any component. In the case of Dena Corp. v.
Belvedere Int’l., Inc., 950 F.2d 1555, 21 USPQ2d 1047,
1051 (Fed. Cir. 1991) (EUROPEAN FORMULA above a circular
design on a dark square or background considered not
unitary), the court declared that a unitary mark must
create a single and distinct commercial impression and
concluded that the elements of the subject mark were not
so merged together that they could not be regarded as
separate. In the case before us, there is no design
element, so we consider the two words themselves and
determine whether, in combination, they have any quality
of sound, appearance or connotation that would render the
mark unitary, i.e., whether the elements are so merged
together that they can not be considered separable or
whether the mark as a whole is a double entendre or
whether the connotation creates an incongruity so that the
Serial No. 76590093
4
whole mark can be considered greater than the sum of its
parts. The mere fact that GOLDEN is an adjective
modifying GLOVE in the mark does not render the mark as a
whole unitary such that the elements are so merged
together that they can not be considered separable.
Similarly, applicant’s argument that it sells multiple
gloves whereas the mark includes the term GLOVE in the
singular is not an incongruity that rises to the level of
creating a unitary mark. We do not find anything about
this mark that would lead us to conclude that it is a
unitary mark.
Thus, in view of the merely descriptive nature of the
term GLOVE in the mark GOLDEN GLOVE, we affirm the
examining attorney’s requirement for a disclaimer of the
term GLOVE apart from the mark as a whole.
Likelihood of Confusion
In arguing that a likelihood of confusion exists, the
examining attorney makes the following statement about the
marks (brief, p. 3):
The applicant’s mark GOLDEN GLOVE is highly
similar to the registrant’s GOLD GLOVE in sight,
sound and commercial impression. Both marks
consist of the unique combination of terms –
GLOVE coupled with a variation of GOLD. The
terms GOLD and GOLDEN have essentially the same
meaning. GOLDEN is define [in The American
Heritage Dictionary of the English Language (3rd
ed. 1992)] as “of, relating to, made of, or
containing gold.” Therefore the marks GOLD GLOVE
and GOLDEN GLOVE communicate the same meaning and
connotation – “a glove of gold.”
Serial No. 76590093
5

Regarding the marks, the examining attorney contends
that both the registration and the application include
identical “baseball gloves”; and that, while applicant’s
identification of goods limits its baseball gloves to those
for Little League players, registrant’s goods are not so
limited and its identification of goods would encompass
applicant’s Little League baseball gloves. Regarding the
channels of trade, the examining attorney notes that neither
identification of goods is limited and, thus, the trade
channels and classes of purchasers are the same.
Applicant noted that the Section 2(d) refusal
originally included citation of two other registrations
owned by the same registrant for GOLD GLOVE AWARD
(Registration No. 990449) and RAWLINS GOLD GLOVE AWARD
(Registration No. 1945544), both registered for
entertainment services and containing a disclaimer of AWARD.
Applicant contends that the withdrawal of the refusal with
respect to these two registrations is tantamount to an
admission that there is no likelihood of confusion with
respect to the remaining cited registration. Applicant
argues that the goods are quite different because
registrant’s gloves are sold to adults and its gloves are
sold only to children for Little League play; and that the
marks are different because there is a significant
Serial No. 76590093
6
difference in sound, meaning and appearance between GOLDEN
and GOLD.
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 likelihood of
confusion issue. See In re E. I. du Pont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). 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); and In re Azteca
Restaurant Enterprises, Inc., 50 USPQ2d 1209 (TTAB 1999) and
the cases cited therein.
We turn, first, to a determination of whether
applicant’s mark and the registered mark, when viewed in
their entireties, are similar in terms of appearance, sound,
connotation and commercial impression. The test is not
whether the marks can be distinguished when subjected to a
side-by-side comparison, but rather whether the marks are
sufficiently similar in terms of their overall commercial
impressions that confusion as to the source of the goods or
services offered under the respective marks is likely to
result. The focus is on the recollection of the average
Serial No. 76590093
7
purchaser, who normally retains a general rather than a
specific impression of trademarks. See Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975).
In our case, both marks consist of a form of the word
GOLD followed by the word GLOVE. The examining attorney has
provided sufficient evidence via a dictionary definition
that GOLDEN is simply another form of the word GOLD and that
it has essentially the same meaning. The words GOLDEN and
GOLD, and, thus, the marks as a whole, differ only by two
letters, the “EN” at the end of GOLDEN in applicant’s mark.
Therefore, we conclude that the sound, appearance,
connotation and overall commercial impressions of the marks
GOLDEN GLOVE and GOLD GLOVE are substantially similar.
Turning to consider the goods or services involved in
this case, of particular relevance herein is the well
settled principle that the question of likelihood of
confusion must be determined based on an analysis of the
goods or services recited in applicant’s application vis-à-
vis the goods or services recited in the registration,
rather than what the evidence shows the goods or services
actually are. Canadian Imperial Bank v. Wells Fargo Bank,
811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987). See
also, Octocom Systems, Inc. v. Houston Computer Services,
Inc., 918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir. 1992); and The
Chicago Corp. v. North American Chicago Corp., 20 USPQ2d
Serial No. 76590093
8
1715 (TTAB 1991). Herein, both applicant’s and registrant’s
identifications of goods contain “baseball gloves.” Whether
registrant actually sells only adult baseball gloves is
irrelevant in view of the lack of any such limitation in its
identification of goods, which are broadly identified and
would encompass applicant’s baseball gloves for Little
League players. Additionally we take judicial notice of the
relevant definition in Merriam-Webster’s Collegiate
Dictionary (11th ed. 2003) of “mitt” as “a baseball
catcher’s or first baseman’s glove made in the style of a
mitten.” Clearly, baseball gloves and mitts are related
items. Thus, the goods are identical and/or closely related
to the goods in the cited registration.
Therefore, we conclude that in view of the substantial
similarity in the commercial impressions of applicant’s
mark, GOLDEN GLOVE, and registrant’s mark, GOLD GLOVE, their
contemporaneous use on the identical goods involved in this
case is likely to cause confusion as to the source or
sponsorship of such goods.
Decision: The requirement under Section 6 of the Act
for a disclaimer of GLOVE is affirmed. The refusal under
Section 2(d) of the Act is also affirmed.