Player’s Design

Trademark Trial and Appeal Board

Oct 30, 2000

No. 75350932 (T.T.A.B. Oct. 30, 2000)

Paper No. 12
HRW
10/30/00
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Player’s Design, Inc.
________
Serial No. 75/350,932
_______
Warren M. Haines, II of Kennedy Covington Lobdell & Hickman
L.L.P. for Player’s Design, Inc.
Katherine Stoides, Trademark Examining Attorney, Law Office
109 (Ronald Sussman, Managing Attorney).
_______
Before Hanak, Wendel and Rogers, Administrative Trademark
Judges.
Opinion by Wendel, Administrative Trademark Judge:
Player’s Design, Inc. has filed an application to
register the mark PLAYER'S DESIGN for “clothing, namely,
children’s and infants’ golf shirts, overshirts, shorts,
sweaters, sweatshirts and hats; infants’ one-piece suits
and cloth bibs; and golf shirts and overshirts sold only in
golf shops or directly to corporations.” A disclaimer has
been entered of the word DESIGN.1

1 Serial No. 75/350,932, filed September 3, 1997, claiming a
first use and a first use in commerce date of September 1988.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/350,932
2
Registration has been finally refused under Section
2(d) of the Trademark Act on the ground of likelihood of
confusion with the registered mark PLAYERS for “men’s and
boy’s apparel, namely, dress shirts, sport shirts, and knit
shirts”2 and with the registered mark PLAYERS SPORT for
“ladies sportswear, namely, tops, jogging suits and
sweaters.”3 The cited registrations are owned by different
entities. The refusal has been appealed and applicant and
the Examining Attorney have filed briefs. An oral hearing
was not requested.
We make our determination of the likelihood of
confusion on the basis of those of the du Pont factors4
which are relevant under the circumstances at hand. Two
key considerations in any analysis are the similarity or
dissimilarity of the respective marks and the similarity or
dissimilarity of the goods with which the marks are being
used. See In re Azteca Restaurant Enterprises, Inc., 50
USPQ2d 1209 (TTAB 1999) and the cases cited therein.
Considering first the goods, the Examining Attorney
maintains that the goods as identified in the application

2 Registration No. 1,464,623, issued November 10, 1987, Section 8
& 15 affidavits accepted and acknowledged, respectively.
3 Registration No. 1,317,086, issued January 29, 1985, Section 8
affidavit accepted. A disclaimer has been made of the word
SPORT.
4 See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973).
Ser No. 75/350,932
3
and in the two registrations are either identical or
closely related clothing items. As support for this
claimed relationship of the items, she had made of record
copies of third-party registrations showing that the same
manufacturers often offer men’s, women’s and children’s
clothing under the same mark. She also argues that since
the goods of the cited registrations are not restricted as
to channels of trade, it must be presumed that these goods
could also be sold in golf shops and directly to
corporations, in the same manner as applicant’s.
Applicant, on the other hand, argues that in view of
the recited manner of sale of its goods, there are
differences in the channels of trade and marketing for the
goods of applicant from those of the registrants.
Applicant further asserts that there are differences in
factors such as the style, function, and price of the
respective goods which must be considered.
As is well established, the issue of likelihood of
confusion must be determined on the basis of the goods as
identified in the involved application and registration(s).
Moreover, in the absence of specific limitations, the goods
must be considered in light of the normal channels of trade
and methods of distribution for goods of this nature. See
Canadian Imperial Bank of Commerce National Association v.
Ser No. 75/350,932
4
Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir.
1987); CBS, Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198
(Fed. Cir. 1983).
Thus, although applicant’s clothing items may be golf-
oriented and may be restricted to sale only in golf shops
or directly to corporations,5 there is no limitation in the
goods of the registrations that would preclude items such
as men’s knit shirts or ladies’ sportswear tops from being
sold in golf shops for use by golfers. There is no
limitation which would preclude sale of any of the clothing
items in either of the registrations directly to
corporations. Any arguments as to relative price, style,
function or the like are immaterial in view of the broad
identification of the goods in the cited registrations.
Accordingly, we find a definite overlap of applicant’s
goods with those of the cited registrations. Moreover, no
differentiation can be made on the basis of channels of
trade or method of marketing.

5 The identification of applicant’s goods, as presently amended,
may be viewed unclear as to whether all the items are intended to
be restricted to sale in this manner or only the “golf shirts and
overshirts.” However, in view of applicant’s argument that its
goods are noncompetitive with those in the cited registrations,
an argument which is not restricted only to “golf shirts and
overshirts,” and in view of the Examining Attorney having made no
argument that the limitation applies only to those goods, we find
that the Examining Attorney has accepted the limitation as
applying to all the goods.
Ser No. 75/350,932
5
Turning to the respective marks, the Examining
Attorney has taken the position that applicant’s mark
PLAYER’S DESIGN is highly similar to the registered marks,
PLAYERS and PLAYERS SPORT in sight, sound and commercial
impression. She argues that the term PLAYER’S is the
dominant portion of applicant’s mark, and, as such, is the
phonetic equivalent of the dominant portion of each of the
registered marks, i.e. PLAYERS. She considers the terms
DESIGN in applicant’s mark and SPORT in the cited mark
PLAYERS SPORT to be of lesser trademark significance, since
both are descriptive and have been disclaimed. She
stresses that the focus in determining likelihood of
confusion must be on the general overall impression created
by the marks and not small differences which may be
forgotten by purchasers over a period of time.
Applicant argues that the marks must be considered in
their entireties; that the marks differ not only in
appearance and sound, but the term DESIGN also contributes
to the distinct overall commercial impression created by
applicant’s mark. Applicant asserts that since in its mark
the term PLAYER’S is used as a adjective modifying DESIGN,
and not as a noun as in the cited marks, the connotations
of the marks are different.
Ser No. 75/350,932
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It is true that, although marks must be considered in
their entireties in determining likelihood of confusion,
there is nothing improper in giving more or less weight to
a particular portion of a mark. See In re National Data
Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985). Thus,
despite the obvious differences in the marks PLAYER’S
DESIGN and PLAYERS and/or PLAYERS SPORT in terms of
appearance and sound, if the terms DESIGN and SPORT add
little of trademark significance to the marks, the overall
commercial impressions created thereby would be very
similar. Clearly this is the case with respect to the mark
PLAYERS SPORT; we agree with the Examining Attorney that
the term SPORT would simply be viewed as a descriptive
reference to the fact that this is a sport line of
clothing.
We do not, however, find the same to hold true for the
term DESIGN in applicant’s mark PLAYER’S DESIGN. Although
applicant, at the request of the Examining Attorney, has
disclaimed the term DESIGN, we are not convinced that
PLAYER’S so dominates applicant’s mark that the mark has a
similar connotation or creates a similar overall commercial
impression to the cited marks. We believe the term DESIGN
plays a part in the impression created by the mark which
cannot be ignored. Applicant’s mark PLAYER’S DESIGN has a
Ser No. 75/350,932
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different connotation than PLAYERS per se. Whether the
inference in the mark PLAYER’S DESIGN is that these are
clothing items which are specifically designed for use by a
golfer or that have been made in accordance with a
particular player’s specifications, the significance of the
term DESIGN is clearly more than minimal. All in all, we
do not find the commercial impressions created by the
respective marks to be highly similar.
This distinction created by the presence of the term
DESIGN becomes even more significant when we take into
consideration another relevant factor, namely, the number
of similar marks for similar goods. Applicant has not only
pointed out the co-existence of the two cited registrations
but also has cited several third-party registrations for
marks containing the term PLAYERS or PLAYER’S for clothing
items.6 The Examining Attorney, in response, argues that,
other than the cited registrations, the third-party marks
create different commercial impressions, the term PLAYERS
therein being combined with a non-descriptive term. She
further argues that the prior existence of these marks on

6 Although applicant has failed to make copies of these
registrations of record, as is the proper means of introducing
evidence of this nature, the Examining Attorney has failed to
object to the registrations on this basis. Instead, she has
responded to this evidence on the merits and, accordingly, we
have done the same.
Ser No. 75/350,932
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the register does not warrant applicant’s registration of a
mark confusing similar to those in the cited registrations.
We are well aware that the third-party registrations
are not sufficient to show use of the marks covered
thereby, or that the public is familiar with the marks.
The registrations are competent, however, to show that
others in the relevant field have adopted marks containing
a particular term and that that term has a degree of
suggestiveness in the field. See In re Hamilton Bank, 222
USPQ 174 (TTAB 1984). Here, we have evidence that the term
PLAYERS has been used in several third-party marks for
clothing items, particularly, sportswear.7 Under these
circumstances, the mere fact that PLAYERS (or a variation
thereof) may appear in both applicant’s mark and the cited
marks is not sufficient basis for a holding of likelihood
of confusion if the marks are otherwise distinguishable as
a whole. See Northwestern Golf Co. v. Acushnet Co., 226
USPQ 240 (TTAB 1985). We find the presence of the

7 We note, as representative examples, the following:
Reg. No. 1,290,244 for PLAYERS CLUB for mens’, womens’,
children’s knit shirts, woven shirts, slacks, jeans, shorts, swim
wear, jackets, warm-up suits, running shorts, blazers, socks,
belts, and shoes;
Reg. No. 2,089,419 for TRUE PLAYERS for clothing, namely,
tee shirts and hats;
Reg. No. 1,993,889 for PRIME PLAYERS for wearing apparel,
namely, shirts; and
Reg. No. 1,725,884 for PLAYERS CHOICE for clothing, namely,
hosiery and socks.
Ser No. 75/350,932
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additional term DESIGN in applicant’s mark to have
sufficient impact on the commercial impression created
thereby to distinguish the mark as a whole from PLAYERS
alone or PLAYERS SPORT.
Accordingly, taking into consideration the relative
weakness of the term PLAYERS when used in marks for
clothing items in the sportswear field and the differences
in sound, appearance and connotation of applicant’s mark
when compared in its entirety to the cited marks, we find
insufficient basis to support a holding of likelihood of
confusion.
Decision: The refusal to register under Section 2(d)
is reversed.
E. W. Hanak
H. R. Wendel
G. F. Rogers
Administrative Trademark Judges,
Trademark Trial and Appeal Board
Ser No. 75/350,932
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