Ontario, Inc.

Trademark Trial and Appeal Board

May 30, 2000

No. 75339551 (T.T.A.B. May. 30, 2000)

Paper No. 10
PTH
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB 5/30/00
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Ontario, Inc.
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Serial No. 75/339,551
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David L. Principe of Hodgson, Russ, Andrews, Woods &
Goodyear, LLP for Ontario, Inc.
Daniel F. Capshaw, Trademark Examining Attorney, Law Office
109 (Ronald R. Sussman, Managing Attorney).
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Before Simms, Seeherman and Hairston, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
An application has been filed by Ontario, Inc. to
register the mark shown below
Ser No. 75/339,551
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for “clothing, namely shirts, sport shirts, woven shirts,
knit t-shirts, knit tops, turtlenecks, polo style knit
tops, sweaters, vests, jackets, light outerwear jackets,
pants, shorts, swimsuits, jeans, hats, caps, and socks.” 1
The Trademark Examining Attorney has refused
registration under Section 2(d) of the Trademark Act on the
ground that applicant’s mark, when used in connection with
applicant’s goods, so resembles the previously registered
mark shown below
for “men’s, women’s and children’s clothing, namely, jeans,
underwear, shirts, jackets, dresses and hats,” 2 as to be
likely to cause confusion.

1 Serial No. 75/339,551, filed August 12, 1997, based on a bona
fide intention to use the mark in commerce.
2 Registration No. 2,048,018 issued March 25, 1997 to Chan’s
Apparel Inc.
Ser No. 75/339,551
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When the refusal was made final, applicant appealed.
Applicant and the Examining Attorney have filed briefs.3 No
oral hearing was requested.
At the outset, we note that applicant does not dispute
that the respective goods are identical in part (jeans,
shirts, jackets and hats) and otherwise closely related.
The respective goods would be sold through the same
channels of trade, e.g., clothing stores, department
stores, and mass merchandisers, to the same class of
purchasers, namely, the general public. Clearly, if such
identical and closely related goods were to be sold under
the same or similar marks, confusion as to source or
sponsorship would be likely to occur.
Turning then to a consideration of the marks, the
Examining Attorney maintains that they are highly similar
in sound, appearance and commercial impression because each
mark consists of the letter “C” within an oval.

3 Applicant, for the first time with its brief, submitted a
trademark search report of registered marks which include the
letter “C” or an oval design for clothing. The Examining
Attorney has objected to the search report as untimely.
The evidence is untimely as provided by Trademark Rule
2.142(d), and thus, has not been considered. We should also
point out that third-party registrations may not be made of
record by introducing a trademark search report taken from a
private company’s database. Riceland Foods Inc. v. Pacific
Eastern Trading Corp., 26 USPQ2d 1883, 1885 (TTAB 1993).
Ser No. 75/339,551
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Applicant, however, contends that the marks are
significantly different in visual appearance, and in its
brief (p. 3), lists a number of specific differences. For
example, applicant maintains that its mark has an
“alternating thin and thick, wavy-smooth overall
appearance” whereas the registered mark has a “thick,
jagged overall appearance.” Further, according to
applicant, in its mark “due to the elongation of the outer
band and the orientation of the letter [C], the distance
between the letter and the band varies greatly between the
ends and the middle,” whereas in the registered mark “the
letter [C] is approximately equidistant from the band on
all sides.” It is essentially applicant’s position that
the registered mark has highly distinctive elements which
distinguish it from applicant’s mark.
In determining whether letter marks are so similar
that their use on identical and closely related goods is
likely to cause confusion, the most important factor is the
overall commercial impressions created by the marks. See
In re Johnson Products Co., Inc., 220 USPQ 539 (TTAB 1983);
Textron Inc. v. Maquinas Agricolas “Jacto” S.A., 215 USPQ
162 (TTAB 1982); and 3 J. Thomas McCarthy, McCarthy on
Trademarks and Unfair Competition, Section 23:33 (4 th ed.
1999).
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Further, as noted by the Board in Textron, supra, at
page 164:
. . . highly stylized, highly contrasting letter/
design combinations tend to fall on the “no
likelihood of confusion” side of the adjudicative
balance and rather clear portrayals of the letters
involved in the compared marks tend to result
in “likelihood of confusion” findings.
It is our view that the marks herein create the same
commercial impression, that is, the letter “C” within an
oval. Applicant’s mark is a clear portrayal of the letter
“C” within an oval, and although the registered mark is
slightly more stylized, it would nonetheless be perceived
by the relevant purchasers as the letter “C” within an
oval. It is unlikely that purchasers of registrant’s
clothing will engage in a studied analysis of the mark as
applicant has done in its brief.
We have kept in mind that, under actual marketing
conditions, consumers do not have the luxury to make side-
by-side comparisons between marks, and instead they must
rely on hazy past recollections. Dassler KG v. Roller
Derby Skate Corp., 206 USPQ 255 (TTAB 1980).
Finally, we should add that this record is devoid of
any evidence of third-party use or registrations of marks
incorporating the letter “C” for clothing.
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We conclude, based on the record before us, that
confusion among consumers is likely to result from
contemporaneous use of the involved marks on identical and
closely related clothing items.
Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed.
R. L. Simms
E. J. Seeherman
P. T. Hairston
Administrative Trademark Judges
Trademark Trial and Appeal Board
Ser No. 75/339,551
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