Nautica Apparel, Inc.v.Majestique Corporation

Trademark Trial and Appeal Board

Jan 3, 2018

No. 91212653 (T.T.A.B. Jan. 3, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: January 3, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Nautica Apparel, Inc.
v.
Majestique Corporation
_____

Opposition No. 91212653
_____

Stephen L. Baker of Baker and Rannells PA,
for Nautica Apparel, Inc.
Gino Negretti of Gino Negretti Law Offices,
for Majestique Corporation.
_____
Before Bergsman, Adlin and Masiello,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Majestique Corporation (“Applicant”) seeks registration on the Principal Register
of the mark shown below for the goods listed below:

Opposition No. 91212653
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Adult novelty gag clothing item, namely, socks; athletic
apparel, namely, shirts, pants, jackets, footwear, hats and
caps, athletic uniforms; athletic footwear; belts; belts for
clothing; bottoms; clothing shields, namely, pads applied to
the underarms of shirts, blouses and sweaters; footwear;
footwear for men and women; footwear not for sports;
headbands for clothing; jackets; leather belts; short sets;
ties; tops; travel clothing contained in a package
comprising reversible jackets, pants, skirts, tops and a belt
or scarf; wearable garments and clothing, namely, shirts;
women's clothing, namely, shirts, dresses, skirts, blouses.1
The application includes the following description of the mark: “The mark consists of
a ‘Sailboat.’”
Nautica Apparel, Inc., (“Opposer”) opposed the registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicant’s mark so resembles Opposer’s registered mark shown below for the goods
listed below as to be likely to cause confusion:

Men’s, women’s and children’s wearing apparel, namely,
hosiery, shoes, sneakers, boots, moccasins, undershirts,
boxer shorts, shirts, blouses, trousers, pants, jackets, coats,
suits, bathing suits, bathrobes, slippers, shorts, ties,
neckwear, scarves, socks, hats and caps, gloves and

1 Application Serial No. 85883577 was filed on March 23, 2013, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1052(a), based upon Applicant’s claim of first use anywhere and
use in commerce since at least as early as June 27, 2012.
Opposition No. 91212653
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mufflers, belts and suspenders and foul weather gear, in
Class 25.2
Opposer also pleaded that Applicant’s mark is likely to dilute the distinctiveness
of Opposer’s marks pursuant to Section 43(c) of the Trademark Act, 15 U.S.C.
§1125(c). However, because Opposer did not discuss this claim in its brief, it is waived.
Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1753 n.6
(TTAB 2013).
Applicant, in its Answer, denied the salient allegations in the Notice of Opposition.
I. The Record
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), Applicant’s application file. Only Opposer introduced testimony
and evidence, specifically:
A. Notice of reliance on copies of its pleaded registrations printed from the
USPTO electronic database showing the current status of and title to the
registrations;3

2 Registration No. 2769600, registered September 30, 2003; renewed.
In its Notice of Opposition, Opposer pleaded ownership of 16 registrations for its sailboat
design in various classes. Because the description of goods in the above-noted registration is
in part identical to the description of goods in the application, we focus the likelihood of
confusion analysis on that registration. If we do not find likelihood of confusion with respect
to the marks at issue for goods that are, in part, identical, then there would be no likelihood
of confusion with the other pleaded marks for goods that are not identical. See In re Max
Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
3 36 TTABVUE.
Opposition No. 91212653
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B. Notice of reliance on Applicant’s responses to Opposer’s Interrogatory Nos. 1,
6, 8, 9, 12, 16, 20 and 24 and Applicant’s written response to Opposer’s Request
for Production No. 12;4 and
C. The testimony declaration of Margaret Bizzari, Director of Intellectual
Property and Product Liability for VF Sportswear, Inc., Opposer’s parent
corporation.
Only Opposer filed a brief.
II. Standing
Opposer’s pleaded registrations are of record and establish Opposer’s standing.
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir.
2000); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189
(CCPA 1982).
III. Priority
Because Opposer has properly made of record its pleaded registrations, and
because Applicant has not filed a counterclaim to cancel any of Opposer’s pleaded
registrations, Section 2(d) priority is not an issue in the opposition as to the marks
and the goods covered by the pleaded registrations. King Candy Co. v. Eunice King’s
Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974).

4 37 TTABVUE.
Opposition No. 91212653
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IV. Likelihood of Confusion
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. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973) (“du Pont”) (cited in B&B Hardware, Inc. v. Hargis
Indus., Inc., 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015)); see also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have
considered each du Pont factor that is relevant or for which there is evidence of record.
See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947
(Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242
(TTAB 2015) (“While we have considered each factor for which we have evidence, we
focus our analysis on those factors we find to be relevant.”). In any likelihood of
confusion analysis, two key considerations are the similarities between the marks
and the similarities between the goods or services. See In re Chatam Int’l Inc., 380
F.2d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); 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.”); see also In re
i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The
likelihood of confusion analysis considers all DuPont factors for which there is record
evidence but ‘may focus … on dispositive factors, such as similarity of the marks and
Opposition No. 91212653
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relatedness of the goods’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 303 F.3d
1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
A. The strength and fame of Opposer’s sailboat design mark.

In determining the strength of a mark, we consider both its inherent strength,
based on the nature of the mark itself, and its commercial strength, based on
marketplace recognition of the mark. See In re Chippendales USA, Inc., 622 F.3d
1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both
by its conceptual strength (distinctiveness) and its marketplace strength (secondary
meaning).”); Top Tobacco, L.P. v. N. Atl. Operating Co., Inc., 101 USPQ2d 1163, 1171-
72 (TTAB 2011) (the strength of a mark is determined by assessing its inherent
strength and its commercial strength); Tea Board of India v. Republic of Tea Inc., 80
USPQ2d 1881, 1899 (TTAB 2006); McCarthy on Trademarks and Unfair Competition
§ 11:83 (4th ed. 2017) (“The first enquiry focuses on the inherent potential of the term
at the time of its first use. The second evaluates the actual customer recognition value
of the mark at the time registration is sought or at the time the mark is asserted in
litigation to prevent another's use.”). Market strength is the extent to which the
relevant public recognizes a mark as denoting a single source. Tea Board of India v.
Republic of Tea Inc., 80 USPQ2d at 1899.
1. The inherent strength of Opposer’s sailboat design trademark.
Because Opposer’s sailboat design mark has no apparent meaning when used in
connection with clothing, it inherently distinctive and, thus, a conceptually strong
trademark. See Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
Opposition No. 91212653
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1772, 396 F.23d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (citing Nautilus Grp.,
Inc. v. Icon Health & Fitness, Inc., 372 F.3d 1330, 71 USPQ2d 1173, 1180 (Fed. Cir.
2004) (defining an arbitrary mark as “a known word used in an unexpected or
uncommon way” and observing that such marks are typically inherently distinctive)).
2. The commercial strength of Opposer’s sailboat design trademark.
Opposer contends that its sailboat design mark “meets all the criteria for being
‘famous.” Fame, if it exists, plays a dominant role in the likelihood of confusion
analysis because famous marks enjoy a broad scope of protection or exclusivity of use
because they have extensive public recognition and renown. Bose Corp. v. QSC Audio
Prods. Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1305 (Fed. Cir. 2002); Recot Inc. v. M.C.
Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1897 (Fed. Cir. 2000); Kenner Parker Toys,
Inc. v. Rose Art Indus. Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed. Cir. 1992).
“[L]ikelihood of confusion fame ‘varies along a spectrum from very strong to very
weak.’” Joseph Phelps Vineyards, LLC v. Fairmount Holdings, LLC, 857 F.3d 1323,
122 USPQ2d 1733, 1734 (Fed Cir. 2017) (quoting Palm Bay Imps., Inc. v. Veuve
Clicquot Ponsardin Maison Fondee en 1772, 73 USPQ2d at 1694 (quoting In re Coors
Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003))). Fame may be
measured indirectly by the volume of sales of and advertising expenditures for the
goods and services identified by the mark at issue, “the length of time those indicia
of commercial awareness have been evident,” widespread critical assessments and
through notice by independent sources of the products identified by the marks, as
well as the general reputation of the products and services. Bose Corp. v. QSC Audio
Opposition No. 91212653
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Prods. Inc., 63 USPQ2d at 1305-06 and 1309. Although raw numbers of product sales
and advertising expenses sometimes suffice to prove fame, raw numbers alone may
be misleading. Some context in which to place raw numbers may be necessary (e.g.,
the substantiality of the sales or advertising figures for comparable types of products
or services). Id. at 1309.
Finally, because of the extreme deference that we accord a famous mark in terms
of the wide latitude of legal protection it receives, and the dominant role fame plays
in the likelihood of confusion analysis, it is the duty of the party asserting that its
mark is famous to clearly prove it. Coach Servs., Inc. v. Triumph Learning LLC, 668
F.3d 1356, 101 USPQ2d 1713, 1720 (Fed. Cir. 2012) (citing Leading Jewelers Guild
Inc. v. LJOW Holdings LLC, 82 USPQ2d 1901, 1904 (TTAB 2007)).
Opposer introduced the following evidence to prove that its sailboat design is a
famous mark:5
• Opposer has been using the sailboat design mark on all of its products, including
clothing, since 2001;6
• The sailboat design mark is featured in Opposer’s advertising and promotional
materials;7

5 We have not considered Opposer’s evidence regarding unsolicited media attention because
the evidence refers to the NAUTICA word mark and not the sailboat design. Bizzari
Testimony Decl. ¶¶47-50 (53 TTABVUE 13-14) and Exhibit 8 (53 TTABVUE 104). For the
same reason, the non-precedential cases cited by Opposer have little probative value. Bizzari
Testimony Decl. Exhibit 13 (53 TTABVUE 130-230).
6 Bizzari Testimony Decl. ¶13 (53 TTABVUE 4). Opposer’s products include, but are not
limited to, jewelry, watches, eyeglasses, sunglasses, wallets, bags, trunks, sheets, blankets,
and curtains. Id. at ¶¶10 and 15 (53 TTABVUE 4).
7 Bizzari Testimony Decl. ¶¶31 and 32 (53 TTABVUE 10).
Opposition No. 91212653
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• Opposer “advertises and promotes its products in practically every media
channel, including without limitation, print, outdoor (e.g., billboards, bus shelters,
taxi tops, etc.), radio, TV, digital online, POS [point of sale], social media, email blasts,
and mail advertising. [Opposer] also participates in sponsorships and cause
marketing.”;8
• Opposer has advertised in magazines such as GQ, In Style, People, Sports
Illustrated, ESPN, Men’s Health, Elle Décor, House Beautiful, and Coastal Living;9
• The number of “impressions” annually from Opposer’s advertising in print
media exceeds 1 billion;10
• Opposer’s clothing products are sold throughout the United States in
department stores and specialty stores, including, but not limited to, Opposer’s own
stores, Amazon.com, Macy’s, Dillard’s, Belk, Bloomingdales, Costco, and other
independent stores;11
• Between 2011 and 2016, Opposer’s annual sales in the United States have
ranged between $731,981,000 and $870,291,000;12

8 Bizzari Testimony Decl. ¶34 (53 TTABVUE 11).
9 Bizzari Testimony Decl. ¶36 (53 TTABVUE 11).
10 Bizzari Testimony Decl. ¶41 (53 TTABVUE 12). “The magazine industry publishes
impressions as well as circulation numbers based on one’s media buy. Circulation data
calculates the number of pages of media that are circulated. To estimate impressions, the
industry standard is to use about four times a publication’s circulation number. It would say
that if you have an ad in People Magazine, four people would see the ad in each physical
magazine.” Id. at ¶39 (53 TTABVUE 12).
11 Bizzari Testimony Decl. ¶19 (53 TTABVUE 7).
12 Bizzari Testimony Decl. ¶25 (53 TTABVUE 9).
Opposition No. 91212653
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• Between 2011 and 2016, Opposer’s annual advertising expenses in the United
States have ranged between $19,116,000 and $27,875,000;13 and
• Between 2004 and 2007, Opposer ranked second in total sales volume in the
men’s sportswear category in the department store channels of trade according to
NPD Group.14
On this record, Opposer’s sailboat design mark is not famous because there is no
testimony or evidence that refers to the sailboat design mark separate and apart from
the word mark. A design mark does not acquire fame simply because it is associated
with a famous word mark. Cf. Bose Corp. v. QSC Audio Prods. Inc., 63 USPQ2d at
1308 (“we think those who claim fame for product marks that are used in tandem
with a famous house mark can properly be put to tests to assure their entitlement to
the benefits of fame for the product marks.”). There is simply no testimony or evidence
regarding the independent trademark significance of Opposer’s sailboat design mark.
Opposer contends, to the contrary, that the fame of its NAUTICA word mark
establishes that its sailboat design mark is famous by association.
There is a symbiotic, reciprocal, concurrent and conjoint
relationship between the NAUTICA word mark and the
Nautica Design Mark. The two marks are used in
conjunction with each other and as a result have become
synonymous with each other. All of [Opposer’s] products
are marketed with the NAUTICA word mark and with the
Nautica Logo Mark (either on the product, or on labels

13 Bizzari Testimony Decl. ¶25 (53 TTABVUE 9).
14 Bizzari Testimony Decl. ¶44 (53 TTABVUE 13). NPD Group is a “recognized data compiling
company” that “tracks market share in the U.S. for various brands, monitoring consumer
purchase data from over 165,000 stores.” Id. at ¶42 (53 TTABVUE 12).
Opposition No. 91212653
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attached to the product, or on hangtags, or on product
packaging).15
Although there is a uniform coupling of the NAUTICA word mark with the
sailboat design mark, the testimony and evidence do not indicate that the sailboat
design alone is recognized by consumers. See Am. Lebanese Syrian Assoc. Charities,
Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1030 (TTAB 2011) (while
consumers have been exposed to CURE4KIDS, it has not been as a standalone mark
and it is not clear to what extent consumers have had an opportunity to disassociate
CURE4KIDS from ST. JUDE’S CHILDREN’S HOSPITAL and, therefore, the
evidence does not support that CURE4KIDS is commercially strong); H.D. Lee Co. v.
Maidenform Inc., 87 USPQ2d 1715, 1727 (TTAB 2008) (“there is no evidence from
which to infer from opposer’s advertising expenses and revenues the extent to which
consumers recognize the ONE TRUE FIT mark standing alone and outside the
context of the LEE trademark.”). Compare Bose Corp. v. QSC Audio Prods. Inc., 63
USPQ2d at 1306-07 (consumer presented with frequent references to the product
marks WAVE and ACCOUSTIC WAVE separate and apart from the BOSE house
mark). In situations involving words and designs, the words are normally accorded
greater weight because the words are likely to make an impression upon purchasers,
would be remembered by them, and would be used by them to request the services.
Cf. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908, 1911 (Fed. Cir. 2012)
(citing CBS Inc. v. Morrow, 708 F. 2d 1579, 1581-82, 218 USPQ 198, 200 (Fed. Cir

15 Bizzari Testimony Decl. ¶18 (53 TTABVUE 7).
Opposition No. 91212653
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1983)); Sweats Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793,
1798 (Fed. Cir. 1987).
Nevertheless, the testimony and evidence establish that Opposer’s sailboat design
mark has achieved recognition and in view of the distinctive nature of the mark, we
find Opposer’s sailboat design mark to be commercially strong.
B. The similarity or dissimilarity and nature of the goods and established, likely-
to-continue channels of trade.16

The goods are in part identical because the descriptions of goods in the application
and Opposer’s pleaded registration both include hats and caps, belts, jackets, shirts,
blouses, pants, scarves, and footwear, slippers, shoes, sneakers, boots, or moccasins.
Under this du Pont factor, Opposer need not prove, and we need not find, similarity
as to each and every product listed in the description of goods. It is sufficient that
relatedness is established for any item encompassed by the description of goods in a
particular class in the application. See Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp.,
648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Inter IKEA Sys. B.V. v. Akea, LLC,
110 USPQ2d 1734, 1745 (TTAB 2014); General Mills Inc. v. Fage Dairy Processing
Indus. SA, 100 USPQ2d 1584, 1588 n.1 (TTAB 2011), judgment set aside on other
grounds, 110 USPQ2d 1679 (TTAB 2014).

16 The preface “adult novelty gag clothing items” in Applicant’s description of goods applies
only to socks because “[s]emicolons should generally be used to separate distinct categories
of goods … within a single class.” TMEP § 1402.01(a) (October 2017); see also In re Midwest
Gaming & Entm’t LLC, 106 USPQ2d 1163, 1166 (TTAB 2013) (finding that, because a
semicolon separated the two relevant clauses in registrant’s identification, its "restaurant
and bar services" is a discrete category of services that stands alone and independently as a
basis for likelihood-of-confusion analysis, and is not connected to nor dependent on the
services set out on the other side of the semicolon).
Opposition No. 91212653
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Because the goods described in the application and Opposer’s pleaded registration
are in part identical, we must presume that the channels of trade and classes of
purchasers are too. See In re Viterra Inc., 101 USPQ2d at 1908 (legally identical goods
are presumed to travel in same channels of trade to same class of purchasers); In re
Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where there
are legally identical goods, the channels of trade and classes of purchasers are
considered to be the same); United Glob. Media Grp., Inc. v. Tseng, 112 USPQ2d 1039,
1049 (TTAB 2014); Am. Lebanese Syrian Associated Charities Inc. v. Child Health
Research Inst., 101 USPQ2d at 1028.
C. The similarity or dissimilarity of the marks.

We now turn to the du Pont likelihood of confusion factor focusing on the similarity
or dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. du Pont, 177 USPQ at 567. However, “where the
question of likelihood of confusion to be decided involves design marks which are not
capable of being spoken, the question of the similarity of the marks must be
determined primarily on the basis of their visual similarity.” In re Vienna Sausage
Mfg. Co., 16 USPQ2d 2044, 2047 (TTAB 1990).
In comparing the marks, we are mindful that where, as here, the goods are in part
identical, the degree of similarity necessary to find likelihood of confusion need not
be as great as where there is a recognizable disparity between the goods. Coach
Servs., Inc. v. Triumph Learning LLC, 101 USPQ2d at 1721; Century 21 Real Estate
Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992);
Opposition No. 91212653
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Jansen Enters. Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007); Schering-Plough
HealthCare Prod. Inc. v. Ing-Jing Huang, 84 USPQ2d 1323, 1325 (TTAB 2007).
“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.” Coach Servs. Inc. v. Triumph Learning LLC, 101 USPQ2d at
1721 (quoting Leading Jewelers Guild Inc. v. LJOW Holdings LLC, 82 USPQ2d 1901,
1905 (TTAB 2007)); see also San Fernando Elec. Mfg. Co. v. JFD Elec. Components
Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Rests. Inc. v. Morrison Inc.,
23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992). The
proper focus is on the recollection of the average customer, who retains a general
rather than specific impression of the marks. Geigy Chem. Corp. v. Atlas Chem.
Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon,
102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v. Oliver & Winston,
Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ
106, 108 (TTAB 1975). Because the goods are clothing items without any restrictions
or limitations as to price point, the average customer is an ordinary consumer.
The marks are shown below:
Opposer’s Mark Applicant’s Mark

Opposition No. 91212653
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The marks are displayed on the left breast of knit shirts and on hang tags as
shown below:
Opposer’s Mark Applicant’s Mark

When the marks are seen by ordinary consumers, what will be remembered is a
sailboat with billowing sails. The basic and obvious similarities between the marks
outweigh the differences. In fact, in some ways Opposer’s mark appears to be a
portion of Applicant’s mark facing the opposite direction. The differences between the
marks, if noticed, may even suggest to viewers that Applicant’s mark is another
version of Opposer’s mark adopted to identify a different line of clothing. In this
regard, the sailboat design used to identify and distinguish the source of Opposer’s
clothing is inherently distinctive, as well as commercially strong, and, therefore,
entitled to a broad scope of protection.17
We find that the marks are similar.

17 Because Applicant did not introduce any testimony or evidence, there is no testimony or
evidence regarding third-party use of sailboat designs to identify and distinguish the source
of clothing.
Opposition No. 91212653
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D. Analyzing the factors.
Because the marks are similar, the goods are in part identical and we must
presume that the goods move in the same channels of trade and are sold to the same
classes of consumers, we find that Applicant’s sailboat design mark for clothing
is likely to cause confusion with Opposer’s registered sailboat design mark for
clothing.
Decision: The opposition is sustained under Section 2(d) of the Trademark Act
and registration to Applicant is refused.