Ollie Pets, Inc.

Trademark Trial and Appeal Board

Sep 27, 2018

No. 86938487 (T.T.A.B. Sep. 27, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: September 27, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Ollie Pets, Inc.
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Serial No. 86938487
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Robert W. Clarida of Reitler Kailas & Rosenblatt LLC,
for Ollie Pets, Inc.
Christopher M. Nunley, Trademark Examining Attorney, Law Office 117,
Travis Wheatley, Acting Managing Attorney.
_____

Before Taylor, Gorowitz and Hightower,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Ollie Pets, Inc. (“Applicant”) seeks registration on the Principal Register of the
mark OLLIE (in standard character format) for “Pet foods” in International Class 31.1

1 Application Serial No. 86938487 was filed on March 14, 2016, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C § 1051(b). On March 9, 2018, during prosecution of the application,
Applicant filed an Amendment to Allege Use, which was accepted on August 10, 2018.
Applicant claims first use of the mark anywhere and first use in commerce since at least as
early as October 5, 2016.
Serial No. 86938487
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. 1052(d), on the ground that it is
likely to cause confusion with the marks in Registration No. 3844380,2 OLLIE B.
BISCUITS (in standard characters and with BISCUITS disclaimed), for “Dog
biscuits; Dog treats” in International Class 31, and Registration No. 4487937,3 OLLIE
B. BISCUITS (in standard characters and with BISCUITS disclaimed) for “On-line
retail store services featuring dog biscuits and pet related items; On-line wholesale
store services featuring dog biscuits and pet related items; Retail store services
featuring dog biscuits and pet related items; Wholesale store services featuring dog
biscuits and pet related items” in International Class 35. The cited registrations are
owned by the same entities.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. Both Applicant and the Examining
Attorney filed briefs. We affirm the refusal to register.
I. Evidentiary Issue
We consider first the record on appeal. Applicant submitted, for the first time with
its reply brief, evidentiary materials consisting of plain copies of three registrations
and a copy of an Office Action issued during the prosecution of one of the
registrations. Because these materials were filed after the filing of the appeal, they

2 Registered September 7, 2010; Section 8 and 15 Affidavit accepted and acknowledged.
3 Registered February 25 2014.
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are untimely and will be given no further consideration. See Trademark Rule
2.142(d), 37 C.F.R. § 142(d) (“The record in the application should be complete prior
to the filing of an appeal. Evidence should not be filed with the Board after the filing
of a notice of appeal.”).4 Any arguments based solely on the untimely materials also
will not be considered.
II. Applicable Law/Limitation of Cited Registrations
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of likelihood of confusion under § 2(d) is based on an
analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the similarities between
the goods or services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976). We discuss below these and other relevant factors.
See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947
(Fed. Cir. 2006) (even within du Pont list, only factors that are “relevant and of
record” need be considered).

4 If Applicant desired to introduce additional evidence, it could have requested suspension of
the proceeding and remand of the application for further examination. See Trademark Rule
2.142(d), 37 C.F.R. § 2.142(d).
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In analyzing likelihood of confusion, we limit our discussion to Registration No.
3844380 for the mark OLLIE B. BISCUITS (in standard characters) for “Dog biscuits;
dog treats” as the identified goods are the closest to Applicant’s recited goods. If we
find no likelihood of confusion with this mark, then it follows there would be no
likelihood of confusion with the mark in the other cited registration. See In re Max
Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB 2008) (confining likelihood of
confusion analysis to one of multiple cited registrations deemed closest to the applied-
for mark).
III. Likelihood of Confusion Analysis
A. Relatedness of the Goods, Channels of Trade and Classes of Consumers

It is well settled that the goods of Registrant and Applicant need not be identical
or competitive, or even be offered through 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 originate from the same source. See Coach Servs., Inc.
v. Triumph Learning LLC, 668 F.3d. 1356, 101 USPQ2d 1713, 1723 (Fed. Cir. 2012);
Hilson Research, Inc. v. Society for Human Resource Management, 27 USPQ2d 1423
(TTAB 1993). The issue here, of course, is not whether purchasers would confuse the
goods, but rather whether there is a likelihood of confusion as to the source of these
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goods. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc.,
223 USPQ 830 (TTAB 1984).
Applicant’s goods are identified as “pet foods” and Registrant’s goods are identified
as “dog biscuits [and] dog treats.” The Examining Attorney maintains that, as
identified, Registrant’s goods are encompassed by Applicant’s goods as identified, and
that they are complementary in terms of purpose or function because they are all
edible items for pets. To support the relatedness of the goods, the Examining Attorney
made of record web pages from the websites of IAMS (www.iams.com), Purina
(htts://store.purina.com/), and Nutro (https://nutro.com) showing the same mark used
in connection with both pet food and pet biscuits and treats.5 We find this evidence
sufficiently demonstrates that Applicant’s pet foods are closely related to Registrant’s
dog biscuits and treats, such goods all being edible items that may be used together
in a feeding regimen.
In addition, because there are no limitations or restrictions in Applicant’s or
Registrant’s identification of goods, we must presume that their respective goods are
marketed in all normal trade channels for those goods, such as both brick and mortar
and on-line pet stores and grocery stores, and to all normal classes of purchasers for
such goods, including ordinary purchasers. In re Elbaum, 211 USPQ 639 (TTAB
1981). As a result, the channels of trade and classes of purchasers, at a minimum,
overlap.

5 September 13, 2017 Office Action, TSDR 6-14. The TSDR citations are to the downloadable
.pdf format.
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We thus find the goods, channels of trade and classes of purchasers are closely
related for purposes of our likelihood of confusion analysis. Applicant does not argues
to the contrary and, in fact, its brief is silent on the issue. Accordingly, those du Pont
factors favor a finding of likelihood of confusion.
B. Absence of Actual Confusion
Applicant also maintains that is that it is unaware of, and there is no evidence of,
any instances of actual confusion between Applicant’s mark and either of the cited
marks since it commenced use of its mark on October 5, 2016. We point out that two
years of concurrent use is a short time on the facts of this appeal. Moreover, it is not
necessary to show actual confusion in order to establish likelihood of confusion. See
Weiss Associates Inc. v. HRL Associates Inc., 902 F.2d 1546, 223 USPQ 1025 (Fed.
Cir. 1990). Particularly in an ex parte proceeding, Applicant’s assertion of the absence
of actual confusion is of little probative value in our determination on the issue of
likelihood of confusion because the Board cannot readily determine whether there
has been a significant opportunity for actual confusion to have occurred, such that
the absence of confusion is meaningful. See In re Opus One Inc., 60 USPQ2d 1812,
1817 (TTAB 2001); In re Kangaroos U.S.A., 223 USPQ 1025 (TTAB 1984). Moreover,
while examples of actual confusion may point toward a finding of a likelihood of
confusion, an absence of such evidence is not compelling in support of a finding of no
likelihood of confusion. Thus, we cannot conclude from the lack of instances of actual
confusion that confusion is not likely to occur. See In re Bissett-Berman Corp., 476
F.2d 640, 177 USPQ 528, 529 (CCPA 1973) (stating that self-serving testimony of
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appellant’s corporate president’s unawareness of instances of actual confusion was
not conclusive that actual confusion did not exist or that there was no likelihood of
confusion). This du Pont factor is neutral.
C. Similarity/Dissimilarity of the Marks
We now turn to the du Pont likelihood of confusion factor focusing on the similarity
or dissimilarity of the marks. We compare the marks, as we must, in their entireties
in terms of sound, appearance, meaning and commercial impression. See Palm Bay
Imps., Inc. v. Veuve Clicquot Ponsardin En 1722, 396 F.3d 1369, 73 USPQ2d 1689,
1691 (Fed. Cir. 2005). However, there is nothing improper in stating that, for rational
reasons, more or less weight has been given to a particular feature of the mark,
provided the ultimate conclusion rests on a consideration of the marks in their
entireties. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
“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., 101 USPQ2d at 1721. 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. L’Oreal
v. Marcon, 102 USPQ2d at 1438; Winnebago Indus., Inc. v. Oliver & Winston, Inc.,
207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106,
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108 (TTAB 1975). Here, the average customer includes members of the general public
seeking pet food and pet treat items.
Applicant’s mark OLLIE and the cited mark OLLIE B. BISCUIT are similar to
the extent that they each include the name “OLLIE” as the sole or first portion of the
mark. Because it is the first word in the cited mark, consumers will most likely focus
on the word OLLIE. See Palm Bay Imports, 73 USPQ2d at 1692 (“Veuve” is the most
prominent part of the mark VEUVE CLICQUOT because “veuve” is the first word in
the mark and the first word to appear on the label); Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon
encountering the marks, consumers will first notice the identical lead word); Presto
Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is
often the first part of a mark which is most likely to be impressed upon the mind of a
purchaser and remembered”). Contrary to Applicant’s contention, the additional
matter in the cited mark does not sufficiently distinguish it from Applicant’s mark,
and both marks convey a connotation and commercial impression of a personal name.
First, the word “BISCUITS” has little to no source-indicating significance because it
is generic for Applicant’s identified “dog biscuits.” As such, this term is entitled to less
weight in our determination. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d
1944 (Fed. Cir. 2004) (descriptive terms are properly given less weight). The initial
“B” and period merely reinforces the personal name connotation that the first name
“OLLIE” conveys in the mark OLLIE B. BISCUITS. The initial “B” and the period
will likely be viewed as the first initial of Ollie’s surname. As such, consumers will
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likely view Applicant’s mark as a shortened form of the cited mark or as a variant
mark identifying different lines of Registrants’ goods.
Applicant’s arguments to the contrary are unavailing. First, to the extent that
Applicant is arguing that personal names are inherently weak, the assertion is not
sufficiently supported. The mere fact that the Register includes a few registrations
for marks that include the same personal name (with additional matter), as more
fully discussed below, is insufficient to make such a categorical determination. In
addition, adding or deleting matter from a registered mark generally does not obviate
the similarly between the marks. See, e.g., Chatam Int’l, supra.
We also find unpersuasive Applicant’s contention that the commercial
impressions conveyed by its mark OLLIE and the cited mark OLLIE B. BISCUITS
differ, as evidenced by Registrant’s most recent specimen of record,6 because “OLLIE
B. BISCUITS is clearly a reference to the Registrant, Oliver Bentleys LLC” and “it
appears the Registrant never uses the mark OLLIE B. BISCUITS except in close
proximity to its corporate name, Oliver Bentleys.” It is well established that, in
contrast to an infringement action where the court examines the visual appearance
of the marks in the context of actual use, in Section 2(d) proceedings before the Board,
only the drawing of the mark is relevant. In re Infinity Broadcasting Corp. of Dallas,
60 USPQ2d 1214 (TTAB 2001) (“in Board proceedings, likelihood of confusion is
determined independent of the context of actual usage”); see also Jim Beam Brands
Co. v. Beamish & Crawford, Ltd., 937 F.2d 729, 19 USPQ2d 1352 (2d Cir. 1991). For

6 The specimen was made of record by Applicant in its July 31, 2007 response at TSDR 11.
Serial No. 86938487
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purposes of our determination of the similarity or dissimilarity of the marks, we may
not consider extraneous matter that is not part of the cited mark as registered. The
different connotations of the marks are not apparent in the marks themselves, and
to the extent consumers may view the term “OLLIE B.” in Registrant’s mark as
shorthand for Registrant’s corporate name, they could attribute that same meaning
to Applicant’s mark.
We also find Applicant’s reliance on the decisions in Colgate-Palmolive Co. v.
Carter Wallace Inc., 167 USPQ 529, 530 (C.C.P.A. 1970) and Lever Brothers Co. v.
Barcolene Co., 174 USPQ 392 (C.C.P.A. 1972) misplaced, because the facts in those
cases can be distinguished from the facts herein. Unlike in this case, the mark in
those cases had different commercial impressions. In Colgate-Palmolive v. Carter
Wallace, the mark “PEAK PERIOD” was found to be a well-known phrase which had
a different connotation and commercial impression than that conveyed by the word
“PEAK” alone. Similarly, in Lever Bros. v. Barcolene, the well-known term “ALL
CLEAR” had a unique meaning that created a separate commercial impression than
that conveyed solely by the term “ALL.” Here, neither Applicant’s OLLIE mark nor
the cited mark OLLIE B. BISCUITS is a well-known phrase with a unique
commercial impression apart from the marks themselves. Rather, both marks convey
the same commercial impressions of a person’s name, OLLIE, notwithstanding the
addition of the letter “B” and period, and the generic term “BISCUITS,” to the cited
mark.
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As Applicant points out, there are differences between the marks when viewed on
a side-by-side basis, but as stated supra, this is not the proper test. Coach Servs. Inc.,
101 USPQ2d at 1721. We find that when considered in their entireties, and against
the backdrop of the absence of other pet food and pet treat registrations for marks
containing the name OLLIE, Applicant’s mark OLLIE and the cited OLLIE B.
BISCUITS mark are similar in appearance, sound and connotation and convey a
similar commercial impression, and those similarities outweigh the differences
identified by Applicant.
The factor of the similarity of the marks thus favors a finding of likelihood of
confusion.
Before leaving this discussion, we note that Applicant has introduced various
third-party registrations including the first names Anna, Simon, Michael and Charlie
for goods unrelated to the pet foods and dog biscuits and treats at issue here, arguing
that personal names that include other matter can easily co-exist on the Register with
other marks incorporating the same name, for the same or similar goods, without
giving rise to a likelihood of confusion.7 Registration details follow:
Registration No. Mark Goods
1913403

Women’s clothing
21968568 ANNA (typed) Women’s clothing

7 January 6, 2017 Response; TSDR 9-17.
8 Registration No. 2196856 was cancelled on July 23, 2005.
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Registration No. Mark Goods
3024620 SIMON
(standard character format)
Chairs
3108427 SIMON LI
(standard character format)
Inter alia, chairs
2255136 SIMON HORN Inter alia, chairs
1886669 MICHAEL Dolls
37122509 MICHAEL AUFHAUSER Dolls
1638832 CHARLIE Perfume
375785810 CHARLIE CAICOS Perfume

We find these registrations have little probative value in our decision. First, none
include the name “OLLIE” alone or in combination with other matter, as do the marks
at issue in this appeal, or are for pet foods, leading us to conclude that the cited
registrations, owned by a single entity, are the only ones registered for marks that
include the name “OLLIE” for pet food, biscuits and treats. Applicant’s assertion that
no confusion is likely because a now-cancelled third-party registration for the mark
OLLI for related goods overlapped on the register with the cited mark is
unpersuasive. An expired registration has no probative value other than to show that
it once issued. In Re Ginc UK Limited, 90 USPQ2d 1472, 1480 (TTAB 2007). See also
Action Temporary Services Inc. v. Labor Force Inc., 870 F.2d 1563, 10 USPQ2d 1307,
1309 (Fed. Cir. 1989) (“a cancelled registration does not provide constructive notice

9 Registration No. 3712250 was cancelled on June 24, 2016.
10 Registration No. 3757858 was cancelled on October 14, 2016.
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of anything”); In re Hunter Publishing Co., 204 USPQ 957, 963 (TTAB 1979)
(cancellation “destroys the Section [7(b)] presumptions and makes the question of
registrability ‘a new ball game’ which must be predicated on current thought.”)
(citations omitted).
Similarly, and as further regards the ANNA, MICHAEL and CHARLIE
registration pairs listed in the table above, one registration in each pair is cancelled
and, therefore, these “pairs” in no way support a finding of no likelihood of confusion.
As for the SIMON trio of marks, we are not familiar with the prosecution history in
those cases and have no way of knowing how the records supported registration, for
example, if the records included evidence of weakness of the name SIMON in the
furniture industry or whether there were consent agreements in place, or if one or
more of the marks registered in error. Moreover, the Board is not bound by the prior
decisions of examining attorneys in allowing marks for registration. See In re USA
Warriors Ice Hockey Program, Inc., 122 USPQ2d 1790, 1793 n.10 (TTAB 2017).
Applicant and the Examining Attorney also have relied on a number of prior
decisions to bolster their positions with regard to a finding, or not, of likelihood of
confusion in this case. While our decision is made within the confines of established
statutes, rules and case precedent, it is axiomatic that each case must be decided on
its own facts. See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed.
Cir. 2001) (“Even if some prior registrations had some characteristics similar to
[Applicant’s] application, the PTO’s allowance of such prior registrations does not
bind the Board or this court.”); In re Merrill Lynch, Pierce, Fenner & Smith Inc., 828
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F.2d 1567, 4 USPQ2d 1141, 1142 (Fed. Cir. 1987). We are therefore obligated to
assess, and have assessed, the registrability of Applicant’s mark on its own merits
and have carefully considered the arguments and evidence of record in this case, even
if not specifically addressed in the decision.
E. Conclusion
When we consider the record, the relevant likelihood of confusion factors, and all
of the arguments and evidence relating thereto, the marks are sufficiently similar for
confusion to be likely when used in connection with related goods in overlapping trade
channels, and we conclude that prospective purchasers familiar with the registered
mark OLLIE B. BISCUITS for dog biscuits and dog treats would be likely to believe,
upon encountering Applicant’s similar mark OLLIE for pet foods, that such goods
emanate from, or are sponsored by or affiliated with, the same source.
Decision: The refusal to register Applicant’s mark OLLIE is affirmed.