Nova Clothing Co., L.L.C.

Trademark Trial and Appeal Board

May 26, 1999

No. 75229424 (T.T.A.B. May. 26, 1999)

Paper No. 8
DEB
THIS DISPOSITION IS NOT CITABLE
AS PRECEDENT OF THE TTAB MAY 26,99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Nova Clothing Company, L.L.C.
________
Serial No. 75/229,424
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Evan M. Kent and Lucy B. Arant of Russ August & Kabat for
Nova Clothing Company, L.L.C.
Elizabeth A. Dunn, Trademark Examining Attorney, Law Office
109 (Chris Pedersen, Managing Attorney).
_______
Before Quinn, Wendel and Bucher, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Nova Clothing Company, a California limited liability
corporation, filed an application for registration of the
mark “NOVA” for “women’s clothing, namely, dresses,
blouses, skirts, jackets and pants.”1
The Trademark Examining Attorney issued a final
refusal to register based upon Section 2(d) of the
Ser. No. 75/229,424
2
Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant's mark, “NOVA,” when used on these items of
women’s clothing, so resembles the following registered
marks:
Œ “NOVA SHEERS” as applied to “pantyhose,”2 and
Œ “HAGGAR NOVA” as applied to “men’s and boy’s
clothing, namely slacks,”3
as to be likely to cause confusion, or to cause mistake, or
to deceive.
Applicant has appealed the final refusal to register.
Briefs have been filed but applicant did not request an
oral hearing. We affirm the refusal to register with
regard to both cited registrations.
In the course of rendering this decision, we have
followed the guidance of In re E.I. du Pont DeNemours &
Co., 476 F.2d 1357, 1362, 177 USPQ 563, 567-68 (CCPA 1973),
which case sets forth the factors that should be
considered, if relevant, in determining likelihood of
confusion.

1 Serial No. 75/229,424, filed January 22, 1997, alleging use
since June 1995.
2 Registration No. 1,510,208, issued on October 25, 1988.
The registration sets forth dates of first use of November 24,
1987; §8 affidavit accepted and §15 affidavit filed.
Ser. No. 75/229,424
3
Reg. No. 1,510,208, “NOVA SHEERS” on pantyhose
Under the first of the du Pont factors, we examine
closely the sound, appearance, meaning and overall
commercial impression of applicant’s mark, “NOVA,” compared
with registrant’s “NOVA SHEERS.” The Trademark Examining
Attorney contends that the word “NOVA” is dominant in both
marks. On the other hand, applicant argues that the marks
in their entireties are totally dissimilar as to sound, and
are different in appearance and meaning.
When making a likelihood of confusion determination
under Section 2(d) of the Act, we must view the respective
marks in their entireties. Yet, one feature of a mark may
be recognized as having greater significance in creating
the overall commercial impression. In this context,
greater weight can be given to a dominant feature in
determining whether there is a likelihood of confusion. In
re National Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed.
Cir. 1985) [“CASH MANAGEMENT ACCOUNT” confusingly similar
to “THE CASH MANAGEMENT EXCHANGE”]; Tektronix, Inc. v.
Daktronics, Inc., 534 F.2d 915, 189 USPQ 693 (CCPA 1976)
[composite mark comprising a square design containing a
large, stylized letter “D” over the words “DAKTRONICS

3 Registration No. 1,465,600 issued on November 17, 1987.
Ser. No. 75/229,424
4
INC.,” is not confusingly similar to “TEKTRONIX”]; and In
re J.M. Originals Inc., 6 USPQ2d 1393 (TTAB 1988) [“JM
ORIGINALS” is confusingly similar to “JM COLLECTABLES”].
We find that in the registered mark, the word “SHEERS”
is highly descriptive of pantyhose. “SHEERS” adds very
little in the way of source indicating value to this
composite mark, and quite properly has been disclaimed.
Thus, the dominant portion of the registrant’s “NOVA
SHEERS” mark is the word “NOVA” –- the only arbitrary
matter in registrant’s mark. We are not ignoring the
descriptive word “SHEERS,” but acknowledging that
descriptive, disclaimed matter is typically less
significant in a likelihood of confusion analysis. Hence,
applicant’s entire mark herein is identical to the
dominant, non-disclaimed portion of registrant’s mark.
In discussing the applicant’s and registrant’s goods,
the Trademark Examining Attorney (brief, p. 3) notes that
this Board and the federal courts have found many different
types of apparel to be related:
The decisions in this field have held many
different types of apparel related under
Section 2(d). Cambridge Rubber Co. v.
Cluett, Peabody & Co., Inc., 286 F.2d 623,
128 USPQ 549 (CCPA 1961) ("WINTER CARNIVAL"

The registration sets forth dates of first use of December 15,
1986; §8 affidavit accepted and §15 affidavit filed.
Ser. No. 75/229,424
5
for women’s boots v. men’s and boys’
underwear); Jockey International, Inc. v.
Mallory & Church Corp., 25 USPQ2d 1233 (TTAB
1992) ("ELANCE" for underwear v. "ELAAN" for
neckties); In re Melville Corp., 18 USPQ2d
1386 (TTAB 1991) ("ESSENTIALS" for women’s
pants, blouses, shorts and jackets v.
women’s shoes); In re Pix of America, Inc.,
225 USPQ 691 (TTAB 1985) ("NEWPORTS" for
women’s shoes v. "NEWPORT" for outer
shirts); In re Mercedes Slacks, Ltd., 213
USPQ 397 (TTAB 1982) ("OMEGA" for hosiery v.
trousers); In re Cook United, Inc., 185 USPQ
444 (TTAB 1985) ("GRANADA" for men’s suits,
coats, and trousers v. ladies’ pantyhose and
hosiery); Esquire Sportswear Mfg. Co. v.
Genesco Inc., 141 USPQ 400 (TTAB 1964)
("SLEEX" for brassieres and girdles v.
slacks for men and young men).
The Trademark Examining Attorney goes on to point out
that this legal precedent merely confirms the industry
practice as reflected elsewhere in the record. She
submitted several dozen extant trademark registrations, all
based on use in commerce, showing use of the same mark in
connection with pantyhose and women’s dresses. She argues
that clothing manufacturers offer a myriad of apparel items
under the same mark, and that the purchasing public is
accustomed to this wide range of articles of clothing and
accessories emanating from the same source.
By contrast, applicant argues that these goods involve
unrelated trade channels, and that furthermore we must
consider these consumers to be discriminating purchasers
because the enumerated clothing items are relatively
Ser. No. 75/229,424
6
expensive. There is no evidence in the file supporting
either contention.
It seems self-evident that these goods are somewhat
different, but equally apparent that women’s pantyhose are
sold in many of the same retail establishments which also
have for sale women's outer clothing items, such as
dresses, blouses, skirts, jackets and pants.
In the absence of a specific limitation in the
registration certificate, we must assume that registrant’s
pantyhose travel in the usual channels of trade for such
goods. In re Elbaum, 211 USPQ 639 (TTAB 1981).
Accordingly, we conclude that such closely related items
reach the same class of ordinary purchasers by moving
through the same trade channels (e.g., department stores,
boutiques, mail-order catalogues, on-line sites, etc.).
Hence, we agree with the position taken by the
Trademark Examining Attorney, and find a likelihood of
confusion as to the mark in Reg. No. 1,510,208.
Reg. No. 1,465,600, “HAGGAR NOVA” slacks for men & boys
As with the first cited registration, we examine
closely the sound, appearance, meaning and overall
commercial impression of the mark, “NOVA,” compared with
Ser. No. 75/229,424
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“HAGGAR NOVA.” The owner of this registration for men’s
and boy’s slacks is the Haggar Clothing Co.
The Trademark Examining Attorney contends that the
word “NOVA” is the dominant portion of this cited mark as
well. Again, applicant argues that the marks in their
entireties are totally dissimilar as to sound, and are
different in appearance and meaning. Much of the
disagreement on this point between the Trademark Examining
Attorney and applicant centers on the fact that the first
word of the mark is “HAGGAR,” registrant’s house mark. The
Trademark Examining Attorney argues that a likelihood of
confusion is not avoided by the addition of this house
mark, while applicant argues that the addition of Haggar’s
house mark eliminates any likelihood of confusion.
Upon reflection, we find that the presence of
registrant’s house mark does not avoid a likelihood of
confusion. See In re Christian Dior, S.A., 225 USPQ 533
(TTAB 1985) [the addition of house mark “DIOR” in
applicant's mark “LE CACHET DE DIOR” for men's shirts does
not avoid likelihood of confusion with mark “CACHET” for
dresses and toiletries].4 To the extent they already know

4 See also Menendez v. Holt, 128 U.S. 514 (Sup. Ct. 1888);
A.T. Cross Co. v. Jonathan Bradley Pens, Inc., 470 F.2d 689, 176
USPQ 15 (2nd Cir. 1972); W. E. Bassett Co. v. Revlon, Inc., 435
F.2d 656, 168 USPQ 1 (2nd Cir. 1970); Hat Corp. of America v. John
Ser. No. 75/229,424
8
of the “HAGGAR” house mark, prospective purchasers will
conclude that “Haggar” is the name of the entity that is
the source of these clothing, and “NOVA” functions as a
separate product mark. But of course, “NOVA” is
applicant’s entire mark. Inevitably, these prospective
purchasers would assume that when “NOVA” appears on two
such similar products, they both come from the same source.
In fact, the consumer acquainted with registrant’s “HAGGAR
NOVA” slacks for men, upon seeing applicant’s “NOVA” pants
for women, is likely to assume this is simply a case of
Haggar’s expanding its pre-existing “… NOVA” line into
women’s wear.
Much of our earlier discussion, supra, about the
myriad of clothing items found to be related, applies
equally here to the close relationship between applicant's
women's dresses, blouses, skirts, jackets and pants, on the
one hand, and registrant's men’s and boy’s slacks, on the
other hand. In the absence of a specific limitation in the
registration certificate, we must assume that registrant
uses the mark on all kinds of slacks for males, and that

B. Stetson Co., 223 F.2d 485, 106 USPQ 200 (CCPA 1955);
Hammermill Paper Co. v. Gulf States Paper Corp., 337 F.2d 662,
143 USPQ 237 (CCPA 1964); and In re Dennison Manufacturing
Company, 229 USPQ 141, 144 (TTAB 1986).
Ser. No. 75/229,424
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these goods travel in the usual channels of trade for such
goods.
We know that men’s slacks and women’s pants are
usually different in their design, and are normally sold in
different sections of major department stores and other
retail outlets. Yet, the case law and third-party
registrations demonstrate that consumers are aware of
extensions across the gender gap by many manufacturers. In
fact, our principal reviewing Court and this Board have on
numerous occasions held that the sale of different items of
wearing apparel –- including items intended for a different
gender of consumer -- under the same or similar marks, is
likely to cause confusion in trade. This has been based
essentially upon common trade channels; common purchasers
and, in particular, the likelihood of adults purchasing
apparel for their friends and family members of the other
gender; and the function of a trademark as a single source
indicator. In what is still good precedent, this Board
held, in circumstances where the goods are even more
dissimilar than is true with the instant goods, that such
source confusion is likely:
With respect to applicant’s men’s shirts
vis-a-vis dresses, while the respective
goods are used by people of different sexes,
Ser. No. 75/229,424
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it is clear that dresses are often purchased
by men for women and the same is true with
respect to men’s dress shirts being
purchased by women for men. Both dresses
and men’s shirts are found in non specialty
clothing stores as well as department
stores. That men’s shirts and dresses would
emanate from a single source under the same
trademark is evidenced by applicant’s own
admission that it uses the mark “CHRISTIAN
DIOR” as a trademark for both men’s clothing
and women’s clothing…
In re Christian Dior, S.A., supra, at p. 534.
Accordingly, we agree again with the position taken by
the Trademark Examining Attorney, and find a likelihood of
confusion as to the mark in Reg. No. 1,465,600.
Decision: Both of the refusals to register are
affirmed.
T. J. Quinn
H. R. Wendel
D. E. Bucher
Administrative Trademark
Judges, Trademark Trial and
Appeal Board