Osprey Packs, Inc.

Trademark Trial and Appeal Board

Aug 8, 2019

87238606 (T.T.A.B. Aug. 8, 2019)

Mailed: August 8, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE

Trademark Trial and Appeal Board
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In re Osprey Packs, Inc.
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Serial No. 87238606
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Michael J. Bevilacqua and Barbara A. Barakat of Wilmer Cutler et al., LLP,
for Osprey Packs, Inc.
Robert N. Guliano, Trademark Examining Attorney, Law Office 105,
Jennifer Williston, Managing Attorney.
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Before Mermelstein, Lynch, and Pologeorgis,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Osprey Packs, Inc. (“Applicant”) seeks registration on the Principal Register of the
mark ATMOS (in standard characters) for “Technical backpacks for backpacking and
load carrying; technical backpacks compatible with personal hydration systems, sold
empty, for backpacking and load carrying” in International Class 18.1

1 Application Serial No. 87238606, filed on November 16, 2016, based on an allegation of use
in commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming March
2005 as both the date of first use and the date of first use in commerce.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 87238606
2
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the mark ATMOS (also in standard characters) registered
on the Principal Register for “clothing, namely, footwear” in International Class 25.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal resumed. We affirm the refusal to register.3
I. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all 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) (“DuPont”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, however,
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, 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.”).

2 Registration No. 3651638; issued on July 7, 2009; renewed.
3 The TTABVUE and Trademark Status and Document Retrieval (“TSDR”) citations refer to
the docket and electronic file database for the involved application. All citations to the TSDR
database are to the downloadable .PDF version of the documents.
Serial No. 87238606
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A. Similarity of the Marks
We initially address the first DuPont likelihood of confusion factor focusing on “the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression.” Palm Bay Imps. Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir.
2005) (quoting DuPont, 177 USPQ at 567). Here, Applicant’s mark is identical to the
cited mark in every way, which “weighs heavily” in support of finding a likelihood of
confusion. In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289,
1290 (Fed. Cir. 1984). And because the marks are identical, the degree of similarity
between the goods that is required to support a finding of likelihood of confusion is
reduced. In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993);
Time Warner Entm’t Co. v. Jones, 65 USPQ2d 1650, 1661 (TTAB 2002); and In re
Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001).
B. Similarity of the Goods
We next turn to the comparison of the goods, the second DuPont factor. In making
our determination regarding the relatedness of the goods, we must look to the goods
as identified in Applicant’s application and the cited registration. See Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162
(Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d
937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion that the
question of registrability of an applicant’s mark must be decided on the basis of the
identification of goods set forth in the application regardless of what the record may
reveal as to the particular nature of an applicant’s goods, the particular channels of
Serial No. 87238606
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trade or the class of purchasers to which the sales of goods are directed.”)); see also In
re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011). It is well-settled that the
goods need not be identical or competitive to support a holding of likelihood of
confusion. It is sufficient that the respective goods are related in some manner, 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, 1722 (Fed. Cir. 2012) (citation omitted); Hilson
Research, Inc. v. Soc’y for Human Res. Mgmt., 27 USPQ2d 1423, 1432 (TTAB 1993).
The issue here, of course, is not whether consumers would confuse the goods, but
rather whether there is a likelihood of confusion as to the source of these goods.
L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223
USPQ 830, 831 (TTAB 1984).
Applicant’s identified goods are “Technical backpacks for backpacking and load
carrying; technical backpacks compatible with personal hydration systems, sold
empty, for backpacking and load carrying.” The goods identified in the cited
registration are “clothing, namely, footwear.”
To demonstrate that Applicant’s and Registrant’s goods are related, the
Examining Attorney submitted extensive Internet evidence showing that it is
common for a single entity to provide both the type of backpacks offered by Applicant
and footwear under the same mark. See In re Detroit Ath. Co., 903 F.3d 1297, 128
Serial No. 87238606
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USPQ2d 1047, 1051 (Fed. Cir. 2018) (relatedness supported by evidence that third
parties sell both types of goods under the same mark, showing that “consumers are
accustomed to seeing a single mark associated with a source that sells both”). The
evidence is summarized below:
• Salomon - February 25, 2017 Office Action, TSDR pp. 7-26 (showing
SALOMON word mark and “S” design mark physically appearing on
footwear and on technical backpacks—including those compatible with
hydration systems);

• Under Armour - February 25, 2017 Office Action, TSDR pp. 26-43
(showing “UA” design mark physically appearing on footwear goods and
on technical backpacks—including those compatible with hydration
systems —and showing “UA” word mark used in connection with the
sale of both footwear and technical backpacks);

• The North Face - February 25, 2017 Office Action, TSDR pp. 44-54
(showing THE NORTH FACE word and design marks physically
appearing on footwear and on technical backpacks—including those
compatible with hydration systems);

• Nike - September 9, 2017 Final Office Action, TSDR pp. 8-21 (showing
swoosh design mark physically appearing on footwear and on technical
backpacks—including those compatible with hydration systems—and
showing NIKE word mark used in connection with the sale of both
footwear and technical backpacks);

• L.L. Bean - September 9, 2017 Final Office Action, TSDR pp. 22-33
(showing L.L. Bean word mark used in connection with the sale of both
footwear and technical backpacks);

• Patagonia - September 9, 2017 Final Office Action, TSDR pp. 34-40
(showing PATAGONIA word mark physically appearing on footwear
and on technical backpacks—including those compatible with hydration
systems);

• Columbia - September 9, 2017 Final Office Action, TSDR pp. 41-52
(showing COLUMBIA word mark and diamond design mark physically
appearing on footwear and on technical backpacks— including those
compatible with hydration systems);

Serial No. 87238606
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• Arc’Teryx - September 9, 2017 Final Office Action, TSDR pp. 53-64
(showing ARC’TERYX word mark used in connection with the sale of
both footwear and technical backpacks);

• Black Diamond - September 6, 2018 Subsequent Final Office Action,
TSDR pp. 4-7 (showing diamond design mark physically appearing on
footwear goods and on technical backpacks— including those compatible
with hydration systems—and showing BLACK DIAMOND word mark
used in connection with the sale of both footwear and technical
backpacks);

• Salewa - September 6, 2018, Subsequent Final Office Action, TSDR pp.
8-9 (showing winged design mark physically appearing on footwear
goods and on technical backpacks—including those compatible with
hydration systems—and showing SALEWA word mark used in
connection with the sale of both footwear and technical backpacks as
well as physically on footwear);

• Jack Wolfskin - September 6, 2018, Subsequent Final Office Action,
TSDR pp. 10-15; November 9, 2018 Denial of Request for
Reconsideration, TSDR p. 8 (showing JACK WOLFSKIN word mark and
paw print design mark physically appearing on footwear and on
technical backpacks);

• Eddie Bauer - September 6, 2018, Subsequent Final Office Action,
TSDR pp. 16-19 (showing script EDDIE BAUER word mark physically
appearing on footwear and on technical backpacks);

• Karrimor - September 6, 2018, Subsequent Final Office Action, TSDR
pp. 21-24 (showing KARRIMOR word mark and reflective “K” design
mark physically appearing on footwear and on technical backpacks—
including those compatible with hydration systems);

• Millet - September 6, 2018, Subsequent Final Office Action, TSDR p.
20; November 9, 2018 Denial of Request for Reconsideration, TSDR pp.
4-7 (showing MILLET word mark and “M” design mark physically
appearing on footwear and on technical backpacks—including those
compatible with hydration systems).

Applicant argues that its goods and Registrant’s goods are unrelated because they
Serial No. 87238606
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are not identical and are not classified in the same international class.4 Yet, as noted
above, the compared goods need not be identical or even competitive to find a
likelihood of confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080,
56 USPQ2d 1471, 1475 (Fed. Cir. 2000). Moreover, “the fact that goods are found in
different classes has no bearing on the question of likelihood of confusion. The
separation of goods into the various classes of the classification schedule is merely a
convenience for the Office and is not intended as a commentary on their relationship
to one another in the marketplace.” In re Sailerbrau Franz Sailer, 23 USPQ2d 1719,
1720 (TTAB 1992).
Applicant also argues that the goods at issue are unrelated because its backpacks
are “high performance technical backpacks, not mere fashion packs and [its] goods
have been so limited” and that its goods “are designed to accept a hydration
reservoir.”5 Applicant’s argument is unavailing. First, one entry in Applicant’s
identification refers to “technical backpacks for backpacking and load carrying,” and
therefore does not necessarily include the capacity to accept a hydration system.
Second, as demonstrated by the third-party evidence submitted by the Examining
Attorney, Applicant’s other more specifically described goods, i.e., backpacks with
hydration systems, and Registrant’s footwear have been offered by the same entity
under the same mark.
Applicant also relies on Internet evidence comprising advertising for its own

4 Applicant’s Appeal Brief, p. 5, 7 TTABVUE 6.
5 Applicant’s Supplemental Brief, p. 4, 14 TTABVUE 5.
Serial No. 87238606
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goods, as well as Registrant’s goods, to support its argument that the goods are
unrelated.6 Specifically, Applicant maintains that Registrant’s advertising
demonstrates that Registrant’s footwear should be limited to fashion sneakers, while
its backpacks are highly technical in nature.7 However, as stated above, to determine
the relationship between the goods, we are bound by the identifications in Applicant’s
involved application and the cited registration. See Stone Lion Capital Partners, LP
v. Lion Capital LLP, supra. Applicant disregards this requirement by impermissibly
relying upon extrinsic Internet evidence in an attempt to distinguish the goods by
limiting the nature or characteristics of Registrant’s footwear. See Coach Servs. Inc.,
101 USPQ2d at 1722; Octocom Sys., 16 USPQ2d at 1787. Accordingly, we reject
Applicant’s arguments based on the extrinsic evidence noted above.
Based on the Internet evidence of record submitted by the Examining Attorney,
we conclude that Applicant’s goods and Registrant’s goods are related and are the
types of goods that have been offered under a single mark by a single entity.
Thus, the second DuPont factor favors a finding of likelihood of confusion.
C. Similarity of Trade Channels and Classes of Purchasers
Next we consider established, likely-to-continue channels of trade, the third
DuPont factor. Because the identifications of Applicant’s goods and Registrant’s goods
are unrestricted as to channels of trade, we must assume that they travel in the
normal trade channels for such goods which would include brick and mortar sporting

6 Id. at pp. 6-7, 14 TTABVUE 7-8; and Applicant’s October 18, 2018 Request for
Reconsideration, TSDR pp. 9-81.
7 Applicant’s Supplemental Brief, pp. 6-7, 14 TTABVUE 7-8.
Serial No. 87238606
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goods stores, as well as online sporting goods retailers. See Coach Servs., 101 USPQ2d
at 1723 (absent limitation “goods are presumed to travel in all normal channels ... for
the relevant goods.”). The third-party website evidence discussed above also
demonstrates that goods such as Applicant’s and goods such as Registrant’s are
featured on the same websites, and move through overlapping channels of trade,
reaching some of the same classes of consumers.
With regard to classes of purchasers, we note that Registrant’s goods are broadly
defined as “footwear” and, therefore, Registrant’s customers would include ordinary
consumers, as well as consumers interested in footwear for hiking, climbing or
backpacking. The consumers for Applicant’s goods would also include recreational
sports enthusiasts interested in hiking, backpacking and climbing. As such, the
classes of purchasers for both Applicant’s and Registrant’s goods, at a minimum,
overlap.
Thus, the third DuPont factor also weighs in favor of finding a likelihood of
confusion.
D. Sophistication and Care of Consumers
Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 177 USPQ at 567.
Applicant argues that the goods offered under its involved mark are expensive and
the consumers are more likely to scrutinize products before purchasing effectively
amounts to a sophisticated consumer argument, which we find does not alter our
Serial No. 87238606
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likelihood of confusion analysis.8
Applicant has provided no evidence of this alleged sophistication of its customers.
Even if there were evidence supporting the sophistication of Applicant’s customers,
there is no evidence that Registrant’s customers or potential customers are
sophisticated. See In re Simulations Publ’ns, Inc., 521 F.2d 797, 187 USPQ 147, 148
(CCPA 1975) (“Statements in a brief cannot take the place of evidence.”); Galen Med.
Assocs., Inc. v. United States, 369 F.3d 1324, 1339 (Fed. Cir. 2004) (“Statements of
counsel . . . are not evidence.”). We cannot infer from the nature of the goods that they
necessarily involve a higher than usual degree of care in purchasing. Moreover, the
third-party website evidence discussed above reflects that some technical backpacks
and some footwear sell at very modest prices that likely would not trigger a high
degree of care in purchasing.
We must consider the “least sophisticated potential purchasers.” See Stone Lion
Capital Partners, 110 USPQ2d at 1163 (“Board precedent requires the decision to be
based ‘on the least sophisticated potential purchasers.’”). Notwithstanding, it is well-
settled that “even sophisticated purchasers are not immune from source confusion,
especially in cases such as the present one involving identical marks and related
goods.” In re i.am.symbollic, llc, 116 USPQ2d 1406, 1413 (TTAB 2015) (citing In re
Research & Trading Corp., 793 F.2d 1276, 230 USP 49, 50 (Fed. Cir. 1986)), aff’d, 866
F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017); see also Carlisle Works, Inc. v.
Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) (“Human

8 Applicant’s Supplemental Brief, pp. 6-7, 14 TTABVUE 7-8.
Serial No. 87238606
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memories even of discriminating purchasers ... are not infallible.”). The identity of
the marks and the relatedness of the goods in this case “outweigh any presumed
sophisticated purchasing decision.” In re i.am.symbolic, llc, 116 USPQ2d at 1413
(citing HRL Assocs., Inc. v. Weiss Assocs., Inc., 12 USPQ2d 1819, 1823 (TTAB 1989),
aff'd, 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990)).
Thus, the fourth DuPont factor is neutral.
E. Lack of Actual or Potential Confusion
Applicant argues, pursuant to the seventh and eighth DuPont factors, that the
parties have co-existed for many years without, to Applicant’s knowledge, any actual
confusion. Applicant also states that it has been using its mark since at least as early
as March 31, 2005 and that Registrant first provided its products in April 2008. As
such, Applicant contends that the longstanding coexistence of the parties’ respective
marks in commerce, apparently without incident, is evidence that there has been and
will be no confusion as to the source of the marks at issue.
While a showing of actual confusion would of course be highly probative of a
likelihood of confusion, the opposite is not true. The lack of evidence of actual
confusion carries little weight. J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960,
144 USPQ 435, 438 (CCPA 1965). The issue before us is the likelihood of confusion,
not actual confusion. Herbko Int’l Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64
USPQ2d 1375, 1380 (Fed. Cir. 2002) (actual confusion not required).
However, the absence of any reported instances of confusion is meaningful only if
the record indicates appreciable and continuous use by Applicant of its mark for a
significant period of time in the same markets as those served by Registrant under
Serial No. 87238606
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the cited mark. Citigroup Inc. v. Capital City Bank Grp., Inc., 94 USPQ2d 1645, 1660
(TTAB 2010); Gillette Can. Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992).
In other words, for the absence of actual confusion to be probative, there must have
been a reasonable opportunity for confusion to have occurred. Barbara’s Bakery Inc.
v. Landesman, 82 USPQ2d 1283, 1287 (TTAB 2007) (the probative value of the
absence of actual confusion depends upon there being a significant opportunity for
actual confusion to have occurred); Red Carpet Corp. v. Johnstown Am. Enters. Inc.,
7 USPQ2d 1404, 1406-07 (TTAB 1988); Cent. Soya Co. v. N. Am. Plant Breeders, 212
USPQ 37, 48 (TTAB 1981) (“the absence of actual confusion over a reasonable period
of time might well suggest that the likelihood of confusion is only a remote possibility
with little probability of occurring”).
In this case, there is no evidence of record of when either Applicant or Registrant
actually began use of their marks in commerce. The only references to dates of use
are those set forth in the involved application and cited registration which do not
constitute evidence of use. See Trademark Rule 2.122(b)(2), 37 C.F.R. § 2.122(b)(2)
(dates of use must be established by evidence). In light of the lack of evidence
regarding the extent of use of Applicant’s and Registrant’s marks, as well as the lack
of evidence regarding the amount of sales generated under their respective marks or
the extent of advertising by either Applicant or Registrant with respect to the goods
offered under their marks, the Board cannot ascertain whether a potential for actual
confusion exists. See In re Kangaroos U.S.A., 223 USPQ 1025, 1026-27 (TTAB 1984).
In any event, any suggestion that there has been no actual confusion between
Serial No. 87238606
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Applicant’s mark and the cited mark based on their coexistence is entitled to little
probative value in the context of an ex parte appeal. Id.
Therefore, the DuPont factors concerning actual or potential confusion are also
neutral.9
II. Conclusion
We have considered all of the arguments and evidence of record and all relevant
DuPont factors. We have found that (1) the marks at issue are identical; (2)
Applicant’s and Registrant’s goods are related goods; and (3) the parties’ respective
goods travel in similar or overlapping trade channels and are offered to similar or
overlapping classes of consumers. We conclude, therefore, that Applicant’s ATMOS
mark, as used in connection with the goods identified in its involved application, so
resembles the cited mark ATMOS used in association with the goods identified in the
cited registration as to be likely to cause confusion or mistake, or to deceive under
Section 2(d) of the Trademark Act.
Decision: The refusal to register Applicant’s ATMOS mark under Section 2(d) of
the Trademark Act is affirmed.

9 Applicant also argues that it has been providing its goods under the ATMOS mark “long
before” Registrant has been providing its goods. Applicant’s Supplemental Brief, p. 4, 14
TTABVUE 5. Such an argument amounts to a priority of use claim that is improper for and
irrelevant to this ex parte proceeding because it effectively constitutes as an impermissible
collateral attack on the cited registration. As the Board explained in In re Fat Boys Water
Sports LLC, 118 USPQ2d 1511, 1517 (TTAB 2016), “the validity of a cited registration cannot
be challenged in an ex parte proceeding.” Thus, we have given no consideration to this
argument in our analysis.