Millersport, Inc.

Trademark Trial and Appeal Board

Dec 18, 2006

No. 76520976 (T.T.A.B. Dec. 18, 2006)

Mailed: 12/18/06

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Millersport, Inc.
________

Serial No. 76520976
_______

Myron Amer, Esq. for Millersport, Inc.

Irene Williams, Trademark Examining Attorney, Law Office
112 (Angela Wilson, Managing Attorney).
_______

Before Quinn, Bucher and Taylor, Administrative Trademark
Judges.

Opinion by Quinn, Administrative Trademark Judge:

An application was filed by Millersport, Inc. to
register the mark FREESTYLE FLYER for “games, namely a disc
to toss and catch and observe in flight” in International
Class 28.1
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act, 15 U.S.C. §
1052(d), on the ground that applicant’s mark, when used in

1 Application Serial No. 76520976, filed June 2, 2003, alleging
first use anywhere and first use in commerce on August 25, 1997.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser No. 76520976
2
connection with applicant’s goods, so resembles the
previously registered mark FREESTYLE for “toys, except for
construction toys, namely, toy vehicles, dolls, robots,
board games and action figures; toy vehicle playsets;
electric vehicle racing sets; model cars, model planes,
model boats, model trains, and vehicle model kits; plush
toys; and radio controlled toys, namely, R/C vehicles and
robots,”2 as to be likely to cause confusion.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney submitted briefs.
Applicant, in urging that the refusal be reversed,
argues that the marks in their entireties possess
sufficient differences in sound, meaning and appearance so
that, when applied to distinctly different toys, confusion
is unlikely to occur among purchasers.
The examining attorney maintains that “FREESTYLE” is
the dominant portion of applicant’s mark, and that this
portion is identical to the entirety of registrant’s mark.
Thus, according to the examining attorney, the marks are
similar. As to the goods, the examining attorney contends
that the goods are related, and that her evidence shows
that “it is not unusual for a wide variety of toys to
emanate from the same source.” The examining attorney

2 Registration No. 2995461, issued September 13, 2005.
Ser No. 76520976
3
further asserts that the goods travel in similar channels
of trade. In support of the refusal, the examining
attorney introduced copies of four third-party
registrations, and an excerpt from a third-party website.
The issue of likelihood of confusion is analyzed by
using the factors that were articulated by a predecessor of
our primary reviewing court, the Court of Customs and
Patent Appeals, in the case of 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 Co., 315 F.3d
1311, 65 USPQ2d 1201 (Fed. Cir. 2003).
In any likelihood of confusion analysis, two key,
although not exclusive, considerations are the similarities
of the marks and the similarities of the goods or services.
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976)("The 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").
We first turn to compare the marks in terms of
appearance, sound when spoken, connotation and overall
commercial impression. Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1692 (Fed. Cir. 2005). The test is not
Ser No. 76520976
4
whether the marks can be distinguished when subjected to a
side-by-side comparison, but rather whether the marks are
sufficiently similar in their entireties that confusion as
to the source of the goods offered under the respective
marks is likely to result. The focus is on the
recollection of the average purchaser, who normally retains
a general rather than a specific impression of trademarks.
In our comparison of the marks, and in our
articulation of reasons for reaching a conclusion on the
issue of likelihood of confusion, “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 the ultimate conclusion rests on
consideration of the marks in their entireties. Indeed,
this type of analysis appears to be unavoidable.” In re
National Data Corp., 732 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985).
In the present case, applicant’s mark is dominated by
the word “FREESTYLE” that is identical to the entirety of
registrant’s mark. It is the first word of applicant’s
mark and, as such, it is the word most likely to be
impressed upon the mind of a consumer and remembered. See
Presto Products v. Nice-Pak Products, Inc., 9 USPQ2d 1895,
1897 (TTAB 1988) Further, given that applicant’s goods are
Ser No. 76520976
5
discs that are tossed into flight, the word “FLYER” is at
least suggestive of the goods; this suggestiveness renders
the term less distinctive relative to the “FREESTYLE”
portion.3 The presence of “FLYER,” a word that is at least
suggestive as used in connection with applicant’s goods, in
applicant’s mark does not sufficiently distinguish
applicant’s mark from registrant’s mark in terms of sound
and appearance. As to connotation, the addition of the
term “FLYER” in applicant’s mark, while adding the idea of
flight, does not result in a mark sufficiently different in
meaning from registrant’s mark FREESTYLE alone. Further,
the addition of the term “FLYER” in applicant’s mark does
not sufficiently distinguish the overall commercial
impression engendered by applicant’s mark from the one
conveyed by registrant’s mark. In sum, the similarities in
sound, appearance, meaning and commercial impression
between the marks FREESTYLE and FREESTYLE FLYER, when
considered in their entireties, outweigh any differences.
In making this finding, we also note that the record is
devoid of evidence of any third-party uses or registrations
of FREESTYLE marks for toys and games. The first du Pont

3 Applicant goes so far as to assert “the word ‘flyer’ as defined
in the dictionary might indicate applicant’s particular toy in
issue” which is “set in flight by a toss.” (Appeal Brief, p. 3).
Ser No. 76520976
6
factor regarding the similarity between the marks weighs in
favor of affirmance of the refusal.
We next turn to consider the du Pont factor focusing
on the similarity between the goods. It is not necessary
that the respective goods be identical or competitive, or
even that they move in the same channels of trade to
support a holding of likelihood of confusion. It is
sufficient that the respective goods are related in some
manner, and/or that the conditions and activities
surrounding the marketing of the goods are such that they
would or could be encountered by the same persons under
circumstances that could, because of the similarity of the
marks, give rise to the mistaken belief that they
originated from the same producer. In re Melville Corp.,
18 USPQ2d 1386 (TTAB 1991). In the present case, the cited
registration lists a variety of toys, including board
games. Applicant’s goods likewise are identified as a
specific type of “game,” albeit one that is played with “a
disc to toss and catch and observe in flight.”
Contrary to applicant’s arguments, the evidence of
record suggests that consumers will assume a common source
upon encountering similar marks for toys and games. In
this connection, the examining attorney introduced four
use-based third-party registrations showing that each
Ser No. 76520976
7
entity adopted a single mark for goods of the type involved
herein (that is, for both flying disc toys and a variety of
other toy items, including board games). Third-party
registrations that individually cover different items and
that are based on use in commerce serve to suggest that the
listed goods and/or services are of a type that may emanate
from a single source. See In re Albert Trostel & Sons Co.,
29 USPQ2d 1783 (TTAB 1993); and In re Mucky Duck Mustard
Co. Inc., 6 USPQ2d 1467 (TTAB 1988).
Also of record is the home webpage of an online
retailer (www.branders.com) showing that a variety of toys
emanate from this single source.
We also note that there is no limitation in either
applicant’s or registrant’s identification of goods and,
therefore, we must presume that the games and toy items
move in similar trade channels (for example, mass
merchandisers and specialty toy retailers) and to identical
classes of purchasers, namely ordinary consumers. See In
re Elbaum, 211 USPQ 639 (TTAB 1981). These ordinary
consumers would be expected to exercise nothing more than
ordinary care in buying either applicant’s or registrant’s
goods.
Ser No. 76520976
8
For the above reasons, we find that the second and
third du Pont factors weigh in favor of a finding of
likelihood of confusion.
We conclude, after weighing the evidence of record as
it pertains to the du Pont factors, that consumers familiar
with registrant’s various toys and board games sold under
its mark FREESTYLE would be likely to believe, upon
encountering applicant’s “games, namely, a disc to toss and
catch and observe in flight” sold under the mark FREESTYLE
FLYER, that the goods originated with or are somehow
associated with or sponsored by the same entity.
Lastly, to the extent that any doubts might exist as
to the correctness of this conclusion, we resolve such
doubts against applicant. In re Shell Oil Co., 992 F.2d
1204, 26 USPQ2d 1687 (Fed. Cir. 1993); In re Hyper Shoppes
(Ohio), Inc., 837 F.2d 840, 6 USPQ2d 1025 (Fed. Cir. 1988);
and In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d
1565, 223 USPQ 1289 (Fed. Cir. 1984).
Decision: The refusal to register is affirmed.