Poker Clothing, Inc., dba Warrior Lifestylesv.Claude M. Donati

Trademark Trial and Appeal Board

Nov 17, 2015

No. 91213394 (T.T.A.B. Nov. 17, 2015)

This Opinion is not a
Precedent of the TTAB
Mailed: November 17, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Poker Clothing, Inc., dba Warrior Lifestyles
v.
Claude M. Donati
_____
Opposition No. 91213394
_____
Roger N. Behle, Jr., of Foley Bezek Behle & Curtis, LLP for Poker Clothing, Inc.

Robert J. Kenney and Michael T. Smith of Birch, Stewart, Kolasch & Birch, LLP for
Claude M. Donati.
_____

Before Bergsman, Kuczma, and Masiello,
Administrative Trademark Judges.

Opinion by Masiello, Administrative Trademark Judge:

Claude M. Donati (“Applicant”), an individual, filed an application1 to register
the mark WEEKEND WARRIOR in standard characters for the following goods:
Campers; Combination camping recreational vehicle and
horse trailer; Recreational vehicles, namely, campers;
Recreational vehicles, namely, fifth wheel trailers;
Recreational vehicles, namely, fifth wheels; Recreational
vehicles, namely, motor homes; Recreational vehicles,

1 Application Serial No. 85905871, filed on April 16, 2013 under Trademark Act Section
1(b), 15 U.S.C. § 1051(b), on the basis of Applicant’s alleged bona fide intention to use the
mark in commerce.
Opposition No. 91213394
2

namely, park trailers; Recreational vehicles, namely,
towable trailers; Recreational vehicles, namely, toy
haulers; Recreational vehicles, namely, travel trailers;
Recreational vehicles, namely, truck campers, in
International Class 12.
Poker Clothing, Inc. (“Opposer”), dba Warrior Lifestyles, opposed registration of
the mark on the ground that the mark, as intended to be used in connection with
the identified goods, so resembles Opposer’s marks WEEKEND WARRIOR,
WARRIOR LIFESTYLES, and WEEKEND WARRIOR NATURAL SPRING
WATER as to be likely to cause confusion, mistake or deception under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d). Opposer also alleges that Applicant’s
application was void ab initio, contending that Applicant was not the owner of the
mark and that Applicant lacked a bona fide intent to use the mark when he filed
the application.2 Opposer pleaded ownership of the following two U.S. registrations:
Reg. No. 3789890

for: Trailers; Recreational vehicles, namely, fifth wheel trailers; Recreational
vehicles, namely, travel trailers; Motor homes; off road vehicle haul trailers; Motor
homes and structural vehicle parts therefore; Recreational vehicle accessories,
namely, awnings, in International Class 12;3

and

2 The cover sheet of Opposer’s notice of opposition also refers to a claim of false suggestion
of a connection under 15 U.S.C. § 1052(a). However, that claim was not pleaded in the body
of the notice of opposition and was not tried by implied consent of the parties; accordingly,
we do not entertain it.
3 Registered May 18, 2010.
Opposition No. 91213394
3

Reg. No. 3790242

for: Bottled water; Drinking water with vitamins; Energy drinks; Sports drinks, in
International Class 32.4

Opposer also pleaded ownership of Application Serial No. 86068120 for the mark
shown below:

for: Motor homes; Motor homes and structural vehicle parts therefor; Recreational
vehicles, namely, fifth wheel trailers; Recreational vehicles, namely, motor homes;
Recreational vehicles, namely, travel trailers; Trailers, in International Class 12.5

Applicant, in his answer, admitted that Opposer is the owner of record of the two
pleaded registrations and the pleaded application, but otherwise denied the salient
allegations of the notice of opposition. The case is fully briefed.
I. The record.
The record includes the pleadings and, by operation of Trademark Rule 2.122,
37 C.F.R. § 2.122, the application file for the opposed mark. The parties stipulated

4 Registered May 18, 2010.
5 Filed on September 18, 2013 under Trademark Act Section 1(b), 15 U.S.C. § 1051(b), on
the basis of Opposer’s alleged bona fide intention to use the mark in commerce.

Opposition No. 91213394
4

that the discovery depositions of three third-party witnesses could be made of record
and treated as testimony, subject to Applicant’s right to object to the questions
asked and the testimony given. 9 TTABVUE. They also stipulated that the
testimony of Applicant and of Opposer’s principal, Larry Broyles, would be
submitted in the form of declarations with exhibits. 11 TTABVUE. The Board noted
and approved both stipulations. 16 TTABVUE.
Opposer has made of record the following testimony and evidence under a notice
of reliance:
- Copies of original registration certificates of Reg. Nos. 3789890 and 3790242
(10 TTABVUE 6-9).

- Discovery deposition of Frank Barouti, vice president of Giant RV, a
distributor of recreational vehicles (10 TTABVUE 10-91).

- Discovery deposition of Casey Torres, product manager of Pacific Coachworks
(10 TTABVUE 92-146).

- Discovery deposition of Brandon Ambris, partner, IKON International Group
(10 TTABVUE 147-202).6

- Discovery deposition of Applicant, Claude Donati, with exhibits (10
TTABVUE 203-324).

Opposer also submitted:
- Declaration of Larry Broyles, an officer and majority shareholder of Opposer
(15 TTABVUE).7

Applicant submitted the following testimony and evidence:

6 The third-party witnesses, Barouti, Torres and Ambris, are unrelated to Opposer but have
had business dealings with Applicant or entities related to Applicant. Although the Barouti,
Torres, and Ambris depositions refer to exhibits, they were submitted without exhibits.
7 Opposer submitted the Broyles declaration on March 23, 2015, later than the parties’
stipulation allowed. However, Applicant has raised no objection, and we have considered it.
Opposition No. 91213394
5

- Declaration of Claude M. Donati, with exhibits (14 TTABVUE).

- First notice of reliance, stating that Applicant would rely on the discovery
depositions of Barouti, Torres, and Ambris (12 TTABVUE).8

- Second notice of reliance on 13 third-party registrations (13 TTABVUE).

II. Standing.
Opposer’s principal declared that Opposer has used the trademark WARRIOR
LIFESTYLES in connection with various recreational vehicles continuously since
approximately February 1, 2008; that it has used the mark WEEKEND WARRIOR
NATURAL SPRING WATER in connection with bottled water that was marketed to
consumers in the recreational vehicle and off-road vehicle markets; and that it has
adopted the mark WEEKEND WARRIOR in connection with the sale and
advertising of recreational vehicles.9 It is clear that Opposer has a real interest in
the outcome of this proceeding. See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d
1023, 1026 (Fed. Cir. 1999); Jewelers Vigilance Committee, Inc. v. Ullenberg Corp.,
823 F.2d 490, 2 USPQ2d 2021, 2023-24 (Fed. Cir. 1987). Opposer has therefore
established its standing to oppose registration of Applicant’s mark. See Ritchie v.
Simpson, 50 USPQ2d 1023; Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d
1024, 213 USPQ 185 (CCPA 1982); Swiss Grill Ltd. v. Wolf Steel Ltd., 115 USPQ2d
2001 (TTAB 2015); Conolty v. Conolty O’Connor NYC LLC, 111 USPQ2d 1302, 1308
(TTAB 2014); Giersch v. Scripps Networks Inc., 90 USPQ2d 1020, 1022 (TTAB 2009)

8 Applicant did not submit copies of the deposition transcripts with its notice of reliance. In
any event, this notice of reliance was not necessary, because once a discovery deposition has
been properly made of record by one party, it may be referred to by any party for any
purpose permitted by the Federal Rules of Evidence. See 37 C.F.R. § 2.120(j)(7).
9 Broyles ¶¶ 3, 6, 8, 15 TTABVUE 3-4.
Opposition No. 91213394
6

(standing established by showing of common law rights). Having proved its
standing to assert its claim under Section 2(d), Opposer is entitled as well to assert
its other grounds of opposition. See N.Y. Yankees P’ship v. IET Prods. & Servs., Inc.,
114 USPQ2d 1497, 1501 (TTAB 2015), Corporacion Habanos SA v. Rodriquez, 99
USPQ2d 1873, 1877 (TTAB 2011).
III. Opposer’s claim that Applicant’s application is void ab initio.
Opposer has alleged that Applicant’s application is void because Applicant “is not
the owner of the WEEKEND WARRIOR mark, nor is he entitled to use the
WEEKEND WARRIOR mark;” and because Applicant “does not have a bon[a] fide
intention to use the mark in commerce.”10 This claim arises from a complex set of
facts involving Applicant and a number of third parties, which we discuss below.
A. Background.

Frank Barouti and Brandon Ambris, two men with experience in the business of
recreational vehicles, conceived the idea of reviving use of the trademark
WEEKEND WARRIOR, a brand that had been known in the recreational vehicle
industry some years before but was considered by all involved to have been
abandoned long ago, perhaps in 2006 or 2007.11 Barouti was involved in
management of Giant RV, a major recreational vehicle dealership.12 Barouti
testified:

10 Notice of opposition ¶ 31 1 TTABVUE 9.
11 Barouti 20:22; Donati 26:15-20; Torres 16:14-25, 10 TTABVUE 30, 229, 108.
12 Barouti 20:4; Donati 47:17-21, 10 TTABVUE 30, 250.
Opposition No. 91213394
7

Well, we were just two guys wanting to build a cool
product. The name was always such a popular name. It
hadn’t been used for the last – I don’t know how many
years, since 2006. … We were like, “Hey, if we can come
up with a cool floorplan, then we can find somebody that
can build it.”13
They sought investors in Elkhart, Indiana, a center of the industry, and entered
discussions with Applicant and Brian Shea. At the time, Applicant ran Nexus RV, a
company that manufactures motor homes and travel trailers and sells them directly
to the public at retail.14 Shea was a business associate of Applicant in an entity
called BC & D Enterprises, which also involved David Middleton;15 Middleton also
appears to have been involved in management of Nexus RV. The project under
discussion involved the manufacture of “toy haulers.” A toy hauler is a non-
motorized trailer that is considered a type of recreational vehicle or “RV.” Barouti
testified:
And that’s when we met up with Claude and Brian in
Indiana. “Hey, if you guys are interested in building a
product for us,” let’s put something together, and if we
can, let’s build something.” So that’s what started it.16
Brandon and I went to Nexus … They helped start us
with Weekend Warrior. They said that they would do it
under their factory, which they did, and started building
product.17

13 Barouti 24:12-25:4, 10 TTABVUE 34-5.
14 Donati 17:25-18:1, 10 TTABVUE 220-1.
15 Ambris 20:10-15, 10 TTABVUE 167.
16 Barouti 25:5-12, 10 TTABVUE 35 (quotation marks as in original).
17 Barouti 34:8-11, 10 TTABVUE 44.
Opposition No. 91213394
8

Ambris understood the role of Applicant and Shea to be “To manufacture the
product under their facility with their supplying connections and fund the – and
fund the project.”18 “Nexus RV funding the materials and manufacturing labor.
Brian Shay [sic] as well as Claude helping to go to a bank and get a line of credit.”19
Ambris and Barouti intended to make no capital contribution to the enterprise.20
Applicant states that he met with Ambris and Barouti two or three times in
February or March, 2013.21 By April, he testified, it was understood that Barouti
was to obtain, through Giant RV, orders for toy haulers in advance of their
manufacture:
A … Their portion of having equity in the company was they
supplied us with a hundred orders verbally. And that was
done in April of 2013, or we wouldn’t have proceeded.

Q Proceeded with what?

A The development of the company. We wouldn’t have
licensed the Weekend Warrior name with RV Warrior. I
wouldn’t have hired engineers and 15 production people
and vested a half million dollars if I didn’t have a
commitment from RV Warrior, who wouldn’t have ordered
product from NeXus if they didn’t have a commitment
from Giant RV.22

Ambris advised Barouti and Applicant that he “had the name” WEEKEND
WARRIOR, but in fact he had merely registered certain domain names.23 During a

18 Ambris 18:5-15, 10 TTABVUE 165.
19 Ambris 26:16-18, 10 TTABVUE 173.
20 Ambris 18:22, 10 TTABVUE 165.
21 Donati 44:7-8, 10 TTABVUE 247.
22 Donati 42:24-43:11, 10 TTABVUE 245-6.
23 Barouti 28:14-16; 49:22-50:25; Donati 45:24-46:7, 10 TTABVUE 38, 59-60; 248-9.
Opposition No. 91213394
9

meeting in Applicant’s office among Applicant, Ambris, and Shea, “[Applicant] and
Brian Shay [sic] did a trademark research and found that the name was not
trademarked. Immediately Claude Donati used his personal credit card and bought
or submitted the – the payment for the name.”24
Applicant filed his application to register the mark on April 16, 2013. Around this
time, an entity called RV Warrior was formed but details relating to its formation
are unclear. Barouti described its formation, but did not appear knowledgeable. He
described it as incorporated in Indiana;25 Ambris described it as an Indiana LLC for
which Applicant or Curtis Hill filed the originating documents in “April of 2013.”26
Ambris described the owners of RV Warrior LLC as BC & D (60%), IKON
International Group (22%), EVO (10%), and Maverick (8%).27 Barouti described the
owners of RV Warrior as BCD (60%), Barouti (10%), Curtis Hill (10%) and Ambris
(20%).28 Applicant testified that BC&D Enterprises owned 60%, of RV Warrior and
that he himself owned 33% of BC&D.29 The exact date of formation of RV Warrior is
not stated in the record, so it is not clear whether it existed when Applicant filed his
application on April 16, 2013. The precise role of RV Warrior in the enterprise is
unclear on the record. Some witnesses discuss the goods that were initially

24 Ambris 39:22-40:1. See also Barouti 28:16-20; 51:1-9, 10 TTABVUE 186-7; 38, 61.
25 Barouti 29:3-25, 10 TTABVUE 39.
26 Ambris12:20-13:5, 10 TTABVUE 159-60.
27 IKON International Group is an entity, of which Ambris is a partner and owner, that
imports and exports aftermarket parts from China and builds travel trailers. Ambris 9:16-
10:2, 10 TTABVUE 156-7. The record does not reveal who or what EVO and Maverick are.
28 Barouti 29:19-25, 10 TTABVUE 39.
29 Donati 51:25-52:2, 10 TTABVUE 254-5.
Opposition No. 91213394
10

produced under the WEEKEND WARRIOR mark as coming from RV Warrior.30 Yet
it was always clear that any product of RV Warrior would be manufactured in the
Nexus RV plant.31 It appears that RV Warrior had only three employees: its
president, its secretary, and a sales person.32 Between April and July 2013, it
appears that Ambris was the president or managing member, but Applicant became
its CEO around July 30, 2013.33 Those having a stake in the company contributed,
in total, $100 to its capital.34 However, “three or four weeks into the existence of the
company,” it obtained a $200,000 line of credit.35 Ambris testified that he believed
the line of credit had been paid off, not from revenues of the company but from
“some other source”;36 and that he did not know who actually paid off the line of
credit or what the remaining balance was that was paid off.37 Applicant testified
that “BC&D Enterprises, my portion of the company, paid for all that debt.”38
Applicant’s testimony indicates that he approached the venture with some
wariness:
The intent when I met with Brandon Ambris, Frank
Beruti [sic], Curtis Hill, and Brian Shea was for the
Weekend Warrior product to be built by NeXus RV. That’s

30 Barouti 33:20-23, 10 TTABVUE 43.
31 Id.
32 Ambris 26:24-25, 10 TTABVUE 173.
33 Donati 52:3-8, 10 TTABVUE 255.
34 Ambris 25:23-26:4, 10 TTABVUE 172-3.
35 Ambris 27:10-14, 10 TTABVUE 174.
36 Ambris 27:20-23, 10 TTABVUE 174.
37 Ambris 30:24-31:2, 10 TTABVUE 177.
38 Donati 67:9-15, 10 TTABVUE 270.
Opposition No. 91213394
11

what their proposal to us was. … So when they made the
presentation to us to ask if we would build product for
them, we thought it made sense for us to do that.
Shortly after that meeting, I found out that they did not
have the name Weekend Warrior. They had not applied
for the name Weekend Warrior. And because I was
unsure of the future of that group, I decided, personally,
to put my name on the Weekend Warrior name with an
application on April 16th, 2013, after two or three
subsequent meetings where we discussed how the model
would be set up. And at that point, I knew we were going
to build it.
…
[T]here was some difficulty with the group. So I wanted to
secure the name and make sure that – I was going to be
the one investing time, effort, and money into it, that I
control that name.39
When asked why he did not seek to register the mark in the name of NeXus RV,
Applicant stated:
Because I wanted to keep it separate because I wanted to
have it as a licensing brand and not owned by RV Warrior
or NeXus RV or any future company.
…
… I could have multiple people build the product for me if
it got big enough to where I needed to do that. Or if I
wanted to use it in China without the connection with any
one company … So I wanted to keep it separate.40

39 Donati 23:16-24:18, 10 TTABVUE 226-7; see also Donati declaration ¶ 16, 14 TTABVUE
4-5 (“By the time RV Warrior LLC was formed, I had been in the RV industry for nearly 20
years. During that time, I have seen a lot of brands and companies come and go. I was
uncertain of the future for what became RV Warrior LLC and I did not want the
WEEKEND WARRIOR mark to be an asset of a new startup company with an uncertain
future. … At the time I filed the trademark application to register WEEKEND WARRIOR, I
wanted to be certain that I would have the ability to license the mark non-exclusively to
more than one entity, including RV Warrior, LLC, if I chose to do so.”)
40 Donati 24:20-25:10, 10 TTABVUE 227-8.
Opposition No. 91213394
12

Thereafter, Applicant proposed to the others a form of trademark license agreement
running from Applicant to RV Warrior, LLC,41 which he intended to be liberal in its
terms:
My recollection is around July 8th I sent an e-mail with a
copy of this licensing agreement to all the members for
their review to assure that we were very transparent and
received an affirmative, mostly verbally, from all the
members.
…
[T]he terms were not ever an issue. I made sure that it
wouldn’t be cumbersome financially on RV Warrior to
sign it. So my expense or charge for the brand name is
nominal. But that was the only consideration that
everybody had. They didn’t – they wanted to make sure
there wasn’t going to be a super big charge for the use of
the name.42
Ambris seems to have understood Applicant’s plan to license the mark to RV
Warrior:
Q Did – did you have any discussions with Mr. Donati as to
how your company RV Warrior would obtain the rights to
use the trademark Weekend Warrior if in fact it was
registered?

A Yes.

…

It would – he personally under Claude Donati’s name
submitted for the trademark Weekend Warrior. Through
that process he created a license agreement and allowed
RV Warrior to use the name.43

41 Donati Exhibit 2, 10 TTABVUE 313-17.
42 Donati 98:22-99:11, 10 TTABVUE 301-2.
43 Ambris 23:24-24:8, 10 TTABVUE 170-1.
Opposition No. 91213394
13

In answer to the question, “did the written agreement accurately reflect the
agreement of the parties?” Ambris answered “Yes.”44 Barouti stated, “So Claude, at
that time, and I thought still to this day, owns the name. So he was just licensing it
back to RV Warrior to use it. That’s probably what this whole thing is.”45
B. Discussion.
A bona fide intent to use a mark in commerce is a statutory requirement of a valid
trademark application under Section 1(b), 15 U.S.C. § 1051(b) (“A person who has a
bona fide intention, under circumstances showing the good faith of such person, to
use a trademark in commerce may request registration of its trademark on the
principal register hereby established ….”). Accordingly, the lack of such intent is a
basis on which an opposer may challenge registration of an applicant’s mark. M.Z.
Berger & Co. v. Swatch AG, 787 F.3d 1368, 114 USPQ2d 1892, 1897 (Fed. Cir.
2015). “[W]hether an applicant has a bona fide intent to use a mark in commerce is
an objective inquiry based on the totality of the circumstances.” Id. at 1900.
Opposer has the burden of demonstrating by a preponderance of the evidence that
Applicant lacked a bona fide intent to use the mark on the identified goods at the
time he filed the application.
Opposer has sought to show both (1) that Applicant was not the appropriate
person to file the application at issue, because the bona fide intention to use the
mark actually resided in someone else; and (2) that Applicant himself lacked the

44 Ambris 41:20, 10 TTABVUE 188.
45 Barouti 51:19-22, 10 TTABVUE 61.
Opposition No. 91213394
14

requisite bona fide intention to use the mark at issue. We will address both aspects
of Opposer’s claim.
(1) Whether the intention to use the mark resided in someone else.
Opposer’s primary theory of opposition is modeled upon the case described in
American Forests v. Sanders, 54 USPQ2d 1860 (TTAB 1999), aff’d, 232 F.3d 907
(Fed. Cir. 2000);46 this theory encompasses Opposer’s allegations that Applicant “is
not the owner” of the mark because the bona fide intention underlying Applicant’s
application resided not in Applicant, but in another entity.47 In Sanders, the Board
considered an application filed by an individual under Section 1(b); and found that
the individual applicant lacked the requisite bona fide intention to use the mark
because she did not, in fact, intend to use the mark in her own individual capacity,
but in partnership with her husband. This lack of the requisite intention rendered
the application void ab initio. In affirming the Board’s decision, the Federal Circuit
wrote:
Pursuant to 15 U.S.C. § 1051, an applicant must be the
owner of the mark for which registration is requested. …
Sanders, submitting her application pro se, chose to file
the application as an individual, even though Sanders
intended to use the mark in partnership with her
husband. … The true owner of the mark was the
partnership of Barbara and Stephen Sanders; therefore
the application, to comply with 15 U.S.C. § 1051, had to
be filed by some entity rather than by an individual.
Sanders v. American Forests, 232 F.3d 907. While both decisions refer to the concept
of trademark ownership, it is clear that both decisions were based upon the

46 The Federal Circuit’s decision affirming the Board’s decision is unpublished.
47 See notice of opposition ¶ 31, 1 TTABVUE 9.
Opposition No. 91213394
15

applicant’s failure “to display a bona fide intent to use the mark as an individual.”
Id. The evidence before the Board in Sanders was particularly clear, with several
frank admissions by the applicant and her husband that the enterprise in question
was a family business consisting of the applicant and her husband and that the
applicant’s intention was to use the mark “as a partnership with my husband.” 54
USPQ2d at 1863.
In the case before us, the relationship among the various actors is anything but
clear. Prior to the filing of the application at issue, discussions occurred involving,
at some level, Applicant, Barouti, Ambris, Shea, Middleton, BC & D, Nexus RV,
and Giant RV. Even Opposer, in arguing that the intention to use the mark did not
reside with Applicant, seems uncertain as to where the intention did reside: “[I]t is
impossible to decipher, given the multitude of businesses and entities intertwined
with Mr. Donati, who controlled what.”48 “If the true facts were that one of the
entities with which Mr. Donati was intertwined was going [to] own and control the
mark, then that entity should have been listed in the Application – not Mr. Donati.
Therefore, in such case, the application, to comply with 15 U.S.C. § 1051, had to be
filed by the entity, rather than an individual who was going to have licensing
control over that Mark.”49 Opposer may wish to argue that RV Warrior was the
entity that held the bona fide intention; however, that argument suffers from a
major weakness, as it was not proven that RV Warrior came into existence prior to
the filing of the application. There is no clear reason, on this record, to find that any

48 Opposer’s brief at 7, 17 TTABVUE 13.
49 Opposer’s brief at 8, 17 TTABVUE 14 (emphasis added).
Opposition No. 91213394
16

of the individuals other than Applicant held the bona fide intention: none of them is
asserting a claim of ownership in this proceeding, and in their testimony they could
not be induced to state that they believe themselves to be the rightful owners of the
mark. Both Ambris and Barouti appeared to be resigned (whether rightly or
wrongly) to the belief that Applicant’s filing of the trademark application gave him
rights to the mark; and they both believed they would use the mark under a license
from Applicant. When we add to this lack of clarity Applicant’s version of events, it
is impossible to find that there was any common understanding or “meeting of
minds” among the various actors in the enterprise until Applicant stepped forward,
claimed ownership of the mark, and presented a plan to license the mark to the
proposed business venture, to which everyone deferred.
The case before us differs substantially from the business arrangements at issue
in other cases where the Board found that the wrong person or entity had applied to
register a mark. In Conolty v. Conolty O’Connor NYC LLC, 111 USPQ2d 1302
(TTAB 2014), prior to the filing of an application there had been several years of
business operations, including instances in which the individual members of a
partnership identified themselves as “Co-Owners” and “founders” of the business. In
Wonderbread 5 v. Gilles, 115 USPQ2d 1296 (TTABVUE 2015), the individual
respondent conceded that a California partnership existed and had previously used
the mark at issue. In UVeritech, Inc. v. Amax Lighting, Inc., 115 USPQ2d 1242
(TTAB 2015), the mark at issue had already been in use on goods in the
marketplace when the respondent began its relationship with the business. As
Opposition No. 91213394
17

Sanders shows, it is not necessary to prove that another entity has actually used a
mark in order to demonstrate that the wrong person or entity applied to register it.
However, in the case before us, Opposer has at best demonstrated a loose,
cooperative arrangement among businessmen and entities, lacking a clear common
view as to intended trademark rights. We find that Opposer has failed to show that
at the time the application was filed, the bona fide intention to use the mark
underlying the application resided with some person or entity other than Applicant.
(2) Applicant’s individual intention to use the mark.
We next consider Opposer’s contention that, at the time Applicant filed his
application, he himself lacked the requisite bona fide intention to make use of the
trademark. We find in this record no plausible basis for such a claim.
The Federal Circuit has suggested that evidence of “market research,
manufacturing activities, promotional activities, steps to acquire distributors, steps
to obtain governmental approval, or other similar activities” may constitute types of
objective evidence of an applicant’s bona fide intention to use a mark. M.Z. Berger &
Co. v. Swatch AG, 114 USPQ2d at 1898 fn.5, quoting, by analogy, Trademark Rule
2.89(d), 37 C.F.R. § 2.89(d). In the case before us, the record shows that Applicant
had experience in the field of RVs and toy haulers.50 He had access to a
manufacturing operation capable of building such goods, controlled by a company of
which he was president and managing member. He was already in discussions with
a distributor for the goods (Barouti), and anticipated a commitment of sales orders

50 Barouti 45:13-14, 10 TTABVUE 55.
Opposition No. 91213394
18

for 100 units. Indeed, within the year following the filing of the application, toy
haulers were manufactured by Nexus RV, delivered to Giant RV, and sold to
customers under the mark WEEKEND WARRIOR.
The suggestion that Applicant did not intend to use the mark himself because he
actually intended to license it to RV Warrior51 is not well taken. Neither is the
suggestion that Applicant’s intent to use the mark is vitiated because Applicant did
not intend to manufacture the goods himself, but rather to have them made by
Nexus RV. The Trademark Act contemplates that entities other than the owner of a
mark may be involved in the use of the mark. Section 45 of the Act defines a
“related company” as “any person whose use of a mark is controlled by the owner of
the mark with respect to the nature and quality of the goods or services on or in
connection with which the mark is used.” 15 U.S.C. § 1127. Section 5 of the Act
states, “If first use of a mark by a person is controlled by the registrant or applicant
for registration of the mark with respect to the nature and quality of the goods or
services, such first use shall inure to the benefit of the registrant or applicant, as
the case may be.” 15 U.S.C. § 1055. It is common commercial practice for the owner
of a trademark to outsource the manufacture of its goods to another entity, while
maintaining control over the nature and quality of the goods.52 It is also common

51 Opposer’s rebuttal brief at 1, 19 TTABVUE 3 (“[Applicant’s] intent was not for Mr. Donati
to actually use the WEEKEND WARRIOR mark”); Opposer’s brief at 6, 17 TTABVUE 12
(“the thought was that he would license the WEEKEND WARRIOR Mark to an entity
called RV Warrior”).
52 Contrary to Opposer’s contention (Opposer’s brief at 6, 17 TTABVUE 12), Applicant was
not required to state in his application that he intended to use the mark through another
entity. See TMEP § 1201.03(a). In any event, the standard form of application signed by
Opposition No. 91213394
19

practice for the owner of a mark to license its use to another entity for the
production and sale of goods, as was apparently contemplated between Applicant
and RV Warrior. See Quality Candy Shoppes/Buddy Squirrel of Wisconsin Inc. v.
Grande Foods, 90 USPQ2d 1389 (TTAB 2007); In re DC Comics Inc., 211 USPQ 834,
835 (TTAB 1981).
Opposer suggests that the license agreement53 prepared by Applicant
automatically effected an abandonment of the mark on the part of Applicant
because of its lack of quality-control provisions.54 However, as Opposer points out,
the license agreement was not even signed by Applicant.55 In any event, Opposer’s
suggestion is inconsistent with the fact that Applicant went on to maintain virtually
total control over the manufacture of the goods. The license agreement is a highly
idiosyncratic document. Whatever its legal significance, it is insufficient to
controvert Applicant’s intention to make use of the WEEKEND WARRIOR mark at
the time he filed the application.
Opposer’s contention that Applicant’s “intent to use was improper because it
violates the Lanham Act’s anti-trafficking provision”56 (i.e., Section 10, 15 U.S.C. §
1060) is not persuasive. The prohibition set forth in Section 10(a)(1) applies to

Applicant states “The applicant has a bona fide intention to use or use through the
applicant’s related company or licensee the mark in commerce …” (Application at 4).
53 Donati Exhibit 2, 10 TTABVUE 313-17.
54 Opposer’s brief at 8-9, 17 TTABVUE 14-15.
55 Opposer’s brief at 8, 17 TTABVUE 14.
56 Opposer’s reply brief at 5, 19 TTABVUE 7.
Opposition No. 91213394
20

certain assignments of trademark applications, and there is no evidence indicating
that Applicant has sought to assign his application.
In sum, the preponderance of the evidence does not support Opposer’s contention
that Applicant lacked a bona fide intention to use the mark. Accordingly, Opposer
has not met its burden of proof and its claim under Trademark Section 1 must fail.
IV. Opposer’s claim under Section 2(d).
We turn next to Opposer’s claim under Trademark Act Section 2(d) on the ground
of likelihood of confusion. Under Section 2(d), the USPTO may refuse registration of
a mark that “so resembles … a mark or trade name previously used in the United
States by another and not abandoned, as to be likely, when used on or in connection
with the goods of the applicant, to cause confusion, or to cause mistake, or to
deceive.” 15 U.S.C. § 1052(d). In support of its claims, Opposer has asserted
ownership of two registered marks and common law rights with respect to a third
mark. We will address first Opposer’s asserted common law rights.
A. Opposer’s rights in the mark WEEKEND WARRIOR as applied to RVs.
Opposer’s asserted rights in the mark WEEKEND WARRIOR as applied to
recreational vehicles is based in common law, as Opposer does not own a
registration of that mark for those goods. Accordingly, in order to base a claim
under Section 2(d) on its ownership of this mark, Opposer must demonstrate its
priority, i.e., that WEEKEND WARRIOR is its “mark or trade name previously used
in the United States … and not abandoned.” 15 U.S.C. § 1052(d). In our analysis of
this question of priority, Applicant is entitled to rely upon April 16, 2013, the date
Opposition No. 91213394
21

on which he filed the opposed application, as his date of constructive first use. Cent.
Garden & Pet Co. v. Doskocil Mfg. Co., 108 USPQ2d 1134, 1140 (TTAB 2013);
Larami Corp. v. Talk To Me Programs Inc., 36 USPQ2d 1840 (TTAB 1995).
Opposer’s principal testified, by means of declaration, as follows:
8. …Based on the success of both WARRIOR
LIFESTYLES and WEEKEND WARRIOR WATER
NATURAL SPRING WATER, in the recreational vehicle
and off-road vehicle markets, Opposer began using the
WEEKEND WARRIOR MARK in connection with the sale
and advertising of recreational vehicles, such as fifth
wheel trailers and travel trailers, motor homes, and off
road vehicle haul trailers.
…
10. Warrior has used the WARRIOR LIFESTYLES,
WEEKEND WARRIOR WATER NATURAL SPRING
WATER, and WEEKEND WARRIOR marks … in
connection with the sale of recreational vehicles and
related product well prior to any alleged use the [sic]
Weekend Warrior mark by Claude Donati.57
Notably, ¶8 quoted above makes no mention of a specific date as of which Opposer
first used its mark. Paragraph 10, which states that Opposer used its mark prior to
Applicant’s first use, does not address the relevant question before us, which is
whether Opposer used its mark prior to the filing date of Applicant’s application.58
Opposer, in its brief, cited no other meaningful evidence as to the date as of which it
used WEEKEND WARRIOR in connection with RVs. We have searched the record

57 Broyles declaration ¶¶ 8, 10, 15 TTABVUE 3-4.
58 We note, moreover, that Mr. Broyles’ testimony that Opposer’s use preceded Applicant’s
use appears to be based on his view that Applicant has never used his mark. See Broyles
declaration ¶ 10. Insofar as this view is based on the misconception that actions by Nexus
RV or others under the control of Applicant could not inure to the benefit of Applicant, it is
contradicted by much evidence showing that Applicant did cause toy haulers under the
WEEKEND WARRIOR mark to be produced and sold.
Opposition No. 91213394
22

and found nothing that supports Opposer’s priority claim. Barouti testified that he
had never seen a product of Opposer branded Weekend Warrior.59 Torres testified
that he knew of Mr. Broyles, but stated, “Warrior Lifestyles Water, he does water
and service work.”60 Ambris testified that through Casey Torres he had heard that
Mr. Broyles “had a clothing company.”61 He was not aware that Broyles’ company
made and sold RVs, saying, “I’ve only been told that he is a service center and
retails used product.”62
On the present record, Opposer cannot demonstrate that it has priority of use
with respect to the WEEKEND WARRIOR mark as applied to RVs. Accordingly, we
need not proceed to consider whether Applicant’s mark so resembles it as to be
likely to cause confusion.
B. Opposer’s registered marks: likelihood of confusion.
Opposer has made of record under a notice of reliance copies of the registration
certificates for U.S. Reg. Nos. 3789890 and 3790242, as originally issued.63
Generally, copies of original registration certificates do not meet the requirements
for demonstrating a plaintiff’s ownership of a registration. See 37 C.F.R. §
2.122(d)(2); TBMP § 704.03(b)(1)(A). However, Applicant has admitted Opposer’s
record ownership of the registrations.64 In view of Applicant’s admission that

59 Barouti 23:3, 10 TTABVUE 33.
60 Torres 17:3-21, 10 TTABVUE 109.
61 Ambris 31:15-19, 10 TTABVUE 178.
62 Ambris 33:4-14, 10 TTABVUE 180.
63 Opposer’s notice of reliance, Exhibits 1 and 2, 10 TTABVUE 6-9.
64 Answer ¶¶ 4, 6, 5 TTABVUE 2-3.
Opposition No. 91213394
23

Opposer owns two subsisting registrations, priority is not in issue with respect to
the marks and goods identified in those registrations. King Candy, Inc. v. Eunice
King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974).
Our determination of likelihood of confusion is based on an analysis of all
probative facts in evidence that are relevant to the factors set forth in In re E. I.
du Pont de Nemours & Co. 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also In
re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003).
(1) Reg. No. 3790242.
We will first consider the portion of Opposer’s claim that is based upon Reg. No.
3790242, which covers the mark shown below for “Bottled water; Drinking water
with vitamins; Energy drinks; Sports drinks”:

(a) The marks.
We must consider the similarity or dissimilarity of the marks at issue in their
entireties as to appearance, sound, connotation and commercial impression. See
Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). “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
Opposition No. 91213394
24

would be likely to assume a connection between the parties.” Coach Servs. Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)
(citation omitted).
In appearance, the two marks are similar in that each includes the wording
WEEKEND WARRIOR; indeed, the entirety of Applicant’s mark is included within
the wording of Opposer’s mark. We bear in mind that Applicant seeks to register his
mark in standard characters; accordingly we consider that his mark would not be
limited to any particular form of display, Squirtco v. Tomy Corp., 697 F.2d 1038,
216 USPQ 937, 939 (Fed. Cir. 1983), and that it could be displayed in a manner
resembling Opposer’s design mark (for example, with WEEKEND in small letters
centered over WARRIOR in larger letters). Further, we give the wording of
Opposer’s mark more weight as an indicator of source than the graphic design
elements because customers would use the wording to request Opposer’s goods. In
re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1911 (Fed. Cir. 2012) (“the verbal
portion of a word and design mark likely will be the dominant portion. … This
makes sense given that the literal component of brand names likely will appear
alone when used in text and will be spoken when requested by consumers”); see also
Sweats Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798
(Fed. Cir. 1987); Giant Food, Inc. v. Nation’s Food Service, Inc., 710 F.2d 1565, 218
USPQ 390 (Fed. Cir. 1983). While noting the visual similarities between the marks,
we acknowledge that the marks differ in appearance by virtue of the additional
Opposition No. 91213394
25

wording of Opposer’s mark, which is absent from Applicant’s mark, as well as the
distinctive design elements of Opposer’s mark.
In sound, the two marks are similar because they share the term WEEKEND
WARRIOR; but they differ by virtue of the additional wording of Opposer’s mark.
With respect to the meanings of the marks, we see no reason why the term
WEEKEND WARRIOR would not convey the same meaning in both marks.
However, we find it significant that the additional wording in Opposer’s mark, i.e.,
the words WATER and NATURAL SPRING WATER, carry a meaning that, while
generic in the context of Opposer’s goods, seems incongruous in the context of
Applicant’s goods.
Overall, we find that the two marks are sufficiently similar in commercial
impression to give rise to a likelihood of confusion as to source.
(b) The goods.
We next consider the similarity or dissimilarity of the goods at issue as they are
identified in the application and registration at issue. See Octocom Syst. Inc. v.
Houston Computers Svcs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990); Kalart Co., Inc. v. Camera-Mart, Inc., 119 USPQ 139 (CCPA 1958); In re
Elbaum, 211 USPQ 639, 640 (TTAB 1981).
Applicant seeks to register its mark for:
Campers; Combination camping recreational vehicle and
horse trailer; Recreational vehicles, namely, campers;
Recreational vehicles, namely, fifth wheel trailers;
Recreational vehicles, namely, fifth wheels; Recreational
vehicles, namely, motor homes; Recreational vehicles,
namely, park trailers; Recreational vehicles, namely,
towable trailers; Recreational vehicles, namely, toy
Opposition No. 91213394
26

haulers; Recreational vehicles, namely, travel trailers;
Recreational vehicles, namely, truck campers.
Opposer’s pleaded registration covers:
Bottled water; Drinking water with vitamins; Energy
drinks; Sports drinks.
The goods do not have to be identical or even competitive in order to find that there
is a likelihood of confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d
1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); In re Iolo Techs., LLC, 95 USPQ2d
1498, 1499 (TTAB 2010). Rather, it is sufficient that they be related in some
manner or that the circumstances surrounding their marketing are such that they
would be encountered by the same persons in situations that would give rise,
because of the marks, to a mistaken belief that the goods originate from the same
source or that there is an association or connection between the sources of the
goods. In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009).
Water, energy drinks, and sports drinks are clearly different in nature from
recreational vehicles. Opposer does not argue in its brief that they are related, other
than to say, with respect to all its marks and Applicant’s mark, that they are “used
in the same field, to sell RVs”;65 and that Opposer uses its various marks “for its
products relating to the RV field.”66 The Broyles declaration states:
6. … beginning at least as early as January 1, 2009, our
company began using the mark “WEEKEND WARRIOR
NATURAL SPRING WATER”, for bottled water, drinking
water with vitamins, and energy drinks, which was

65 Opposer’s brief at 14, 17 TTABVUE 20.
66 Opposer’s brief at 17, 17 TTABVUE 23.
Opposition No. 91213394
27

marketed and sold to the consumers in the recreational
vehicle and off-road vehicle markets.
...
8. Warrior’s products are well known in the recreational
vehicle industry …
…
10. Warrior has used the WARRIOR LIFESTYLES,
WEEKEND WARRIOR WATER NATURAL SPRING
WATER, and WEEKEND WARRIOR marks (collectively,
“WARRIOR Family of Marks”) in connection with the sale
of recreational vehicles and related product …67
We find this testimony insufficient to persuade us that Opposer’s water and
beverages are commercially related to Applicant’s recreational vehicles. Nowhere is
there any explanation of why customers would tend to believe that a single entity
produces both types of goods. Moreover, the manner in which Opposer’s witness has
conflated his testimony regarding the beverage trademark with his testimony
regarding Opposer’s other marks and other goods results in an equivocal effect. The
reference to “Warrior’s products” in ¶ 8 of the Broyles declaration does not
unequivocally refer to Opposer’s beverages. The statement in ¶ 10 that Opposer
uses all three of its marks in connection with “recreational vehicles and other
products” does not unequivocally state that the WEEKEND WARRIOR mark is
used with recreational vehicles. The statement in ¶ 6 that Opposer’s beverages were
“marketed and sold in the recreational vehicle and off-road vehicle markets” cries
out for explanation. How a beverage may be sold in an automotive vehicle
marketplace is hardly obvious; the Broyles declaration, lacking in any detail,

67 Broyles declaration ¶¶ 6, 8, 10, 15 TTABVUE 3-4 (emphasis added).
Opposition No. 91213394
28

neither explains this phenomenon nor even attempts to. On this record, we find that
the goods of Applicant and Opposer’s drinking water and other beverages are not
related. This du Pont factor weighs heavily against a finding of likelihood of
confusion.
(c) Other du Pont factors.
Opposer’s brief alludes to many of the other du Pont factors, including similarity
of trade channels, the fame of Opposer’s mark, actual confusion, and Applicant’s
bad faith adoption. Opposer’s discussion of these factors focuses entirely upon the
field of recreational vehicles, making almost no reference to Opposer’s beverages.
Trade channels for beverages are addressed in the evidence only in the very brief
testimony, discussed above, in the Broyles declaration. We see no reason on this
record to find that the goods of Applicant and Opposer travel through similar or
related trade channels; that there is any overlap in the customer classes; or that the
conditions under which sales are made would increase the likelihood of confusion.
Opposer’s claim of fame is unsupported. The most salient evidence of the third-
party witnesses’ awareness of Opposer’s business has been discussed above;68
neither this evidence nor anything else in the record suggests that Opposer or its
marks are famous.
The evidence of confusion as between Opposer’s mark and Applicant’s mark is set
forth in the Broyles declaration:
Mr. Donati’s claims concerning his “ownership” of the
Weekend Warrior mark have caused confusion in the

68 Barouti 23:3; Torres 17:3-21; Ambris 31:15-19; 33:4-14, 10 TTABVUE 33, 109, 178, 180.
Opposition No. 91213394
29

recreational vehicle market. Others in the industry who
have been aware of Warrior’s use of the WARRIOR
Family of Marks have questioned whether my company or
I am involved with Mr. Donati, and I have had to correct
them and verify that neither my company nor I am
involved.69
This account is lacking in detail (such as the identities of the persons involved,
dates of the incidents, and specifics as to the circumstances) and supporting
evidence. To the extent that we interpret it as testimony that individuals have
asked “whether my company or I am involved with Mr. Donati,” such statements
are inadmissible hearsay. While we credit Mr. Broyles’ own statement of his
perceptions and beliefs, it is very weak evidence of actual confusion. An allegation of
actual confusion necessarily entails an inquiry into the confused person’s mental
state, and we question the weight of Mr. Broyles’ uncorroborated testimony as to
the state of confusion of others.
Finally, Opposer’s allegation that Applicant adopted the WEEKEND WARRIOR
mark in bad faith is based upon Opposer’s contention that Applicant intended to
cause confusion as between himself and the defunct business that had previously
used the mark.70 It is not clear to us that such an intention has any relevance to the
question of likelihood of confusion as between Applicant and Opposer. In any event,
Opposer has not presented persuasive evidence that Applicant harbored an
improper intent. All of the individuals involved in this case considered the earlier
user of the mark to be defunct and the mark to have been abandoned for

69 Broyles declaration ¶ 11, 15 TTABVUE 4.
70 Opposer’s brief at 13, 17 TTABVUE 19.
Opposition No. 91213394
30

approximately six years. None of them felt that the adoption of the abandoned mark
was inappropriate. Applicant admitted that he had been asked more than ten times
whether he was connected to the earlier WEEKEND WARRIOR, primarily by
people seeking replacement parts for their older vehicles. However, there is no
evidence that Applicant sought to exploit or promote this misimpression: he told
such people that there was no connection, and he did not carry suitable replacement
parts for such older vehicles.71 We acknowledge that the adoption and revival of a
mark earlier used and purportedly abandoned by another business can, under
certain circumstances, provide fertile terrain for a legal dispute. However, in the
case before us no one associated with the earlier WEEKEND WARRIOR business
has come forward to press a claim; and Opposer has not put forth the testimony of
any such person in support of its claims. We are not persuaded on this record that
Applicant adopted his mark in bad faith.
(d) Conclusion as to pleaded Reg. No. 3790242.
While there is a substantial similarity between the marks of Applicant and
Opposer, the parties’ goods are commercially unrelated; and Opposer has not shown
any other du Pont factors to favor a finding of likelihood of confusion. On this record
we find that confusion as to the source of the parties’ goods is not likely.
(2) Reg. No. 3789890.
We next consider the portion of Opposer’s claim that is based upon Reg. No.
3789890, which covers the mark shown below for “Trailers; Recreational vehicles,

71 Donati 28:16-29:1.
Opposition No. 91213394
31

namely, fifth wheel trailers; Recreational vehicles, namely, travel trailers; Motor
homes; off road vehicle haul trailers; Motor homes and structural vehicle parts
therefore; Recreational vehicle accessories, namely, awnings”:

(a) The goods; channels of trade; customers.
Turning first to the similarity or dissimilarity of the goods at issue, we find that
they are in large part identical. Both the pleaded registration and the application
identify “fifth wheel trailers,” “motor homes,” and “travel trailers.” Moreover,
Opposer’s broadly identified “trailers” include within their scope many of the more
specifically identified trailers listed in the application. Accordingly, the du Pont
factor regarding the similarity or dissimilarity of the goods weighs in favor of a
finding of likelihood of confusion.
Because the parties’ goods are in part identical, we must presume that they move
through the same channels of trade and are sold to the same classes of purchasers.
See In re Viterra Inc., 101 USPQ2d at 1908; American Lebanese Syrian Associated
Charities Inc. v. Child Health Research Institute, 101 USPQ2d 1022, 1028 (TTAB
2011); In re Smith and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994). Moreover,
Opposition No. 91213394
32

we presume that the parties’ goods move in all channels of trade that are normal for
such goods, because there are no limitations as to channels of trade in the
identifications of goods in the registration and application. See Octocom, 16
USPQ2d at 1787; Paula Payne Products Co. v. Johnson Publishing Co., 473 F.2d
901, 177 USPQ 76 (CCPA 1973); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB
1992).
(b) The strength or weakness of the term WARRIOR.
Applicant contends that the term WARRIOR is commercially weak because of
third-party use of the term in the marketplace.72 du Pont requires that, as part of
our analysis, we consider “[t]he number and nature of similar marks in use on
similar goods.” 177 USPQ at 567. Applicant testified, “… Winnebago builds a motor
home called the Warrior, or used to. … Thor Industry has a trademark ‘Road
Warrior,’ i.e., toy hauler/fifth wheel.”73 Applicant’s declaration restates this: “During
my years in the RV industry, I am aware that Winnebago offered RVs for sale under
the name WARRIOR, that Thor Industry offered RVs under the name ROAD
WARRIOR.”74 The use of the past tense in Applicant’s declaration indicates that
this information does not reflect current market conditions. Therefore, these facts
are of little weight.

72 Applicant’s brief at 22, 18 TTABVUE 26.
73 Donati 32:7-15, 10 TTABVUE 235.
74 Donati declaration ¶ 9, 14 TTABVUE 3.
Opposition No. 91213394
33

Applicant has made of record a number of third-party registrations of marks that
include the term WARRIOR, owned by different entities.75 The Federal Circuit has
stated that evidence of third-party registrations is relevant to show that “some
segment that is common to both parties’ marks may have a ‘normally understood
and well-recognized descriptive or suggestive meaning, leading to the conclusion
that that segment is relatively weak,’ …” Jack Wolfskin Ausrustung Fur Draussen
GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d
1129, 1136 (Fed. Cir. 2015), quoting Juice Generation, Inc. v. GS Enters. LLC, 794
F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015). “The weaker an opposer’s
mark, the closer an applicant’s mark can come without causing a likelihood of
confusion and thereby invading what amounts to its comparatively narrower range
of protection.” Juice Generation v. GS Enters., 115 USPQ2d at 1674. Among the
third-party registrations of record, we find most relevant the following registrations:
Reg. No. Mark Goods

3589025 ROAD WARRIOR Recreational vehicles, namely, fifth wheel trailers
and travel trailers.

3655606 ROCK WARRIOR Motor vehicles and structural parts there.

2284491 ROADWARRIOR … non-commercial flatbed highway utility trailers
…used primarily for light weight duty personal
and recreational purposes …

3335545 WARRIOR
(stylized)
Inner tubes for pneumatic tires; … vehicle wheel
tires; automobile tires; tires for vehicle wheels; …

75 Applicant’s second notice of reliance, 15 TTABVUE 5-68.
Opposition No. 91213394
34

We note also registrations of ROADWARRIOR (with design) for emission reduction
units; ROAD WARRIORS AUTO TRANSPORTER for transport of automobiles,
sport utility vehicles and trucks; and seven registrations belonging to a single entity
for variations of the marks SPEED WARRIOR, STREET WARRIOR, WEIAND
WARRIOR, and WARRIOR, all for intake manifolds. We find this evidence
sufficient to show that the term WARRIOR has some suggestive significance in the
field of automotive goods and services, thereby weakening, to some extent, the
source indicating power of that term. Applicant explained his understanding of the
suggestive meaning of the term under examination by Opposer’s counsel:
A. Somebody that is a normal Joe Monday through
Friday, but on the weekend they want to be a gladiator, a
warrior, a Spartan, somebody that likes that outdoor
lifestyle, motorcycle riders, toy – you know, somebody who
would use a toy hauler that would have toys to use;
BMXers, snowmobilers.
Q. So it’s the concept of, as you said, a regular guy during
the week and then a warrior on the weekend?
A. Yeah.
Q. So a weekend warrior?
A. Yes.
Although we do not find Applicant’s evidence of the suggestive weakness of the term
WARRIOR to be of very great weight, we take it into consideration in our analysis.
(c) The marks.
Turning to the marks, we consider, as before, their similarity or dissimilarity in
their entireties as to appearance, sound, connotation and commercial impression.
Palm Bay Imports v. Veuve Clicquot Ponsardin, 73 USPQ2d 1689. As before, we
Opposition No. 91213394
35

bear in mind that Applicant’s mark is in standard characters and is not limited to
any particular form of display; and we give the wording of Opposer’s mark more
weight as an indicator of source than the graphic design elements. In re Viterra Inc.,
101 USPQ2d at 1911. We are also mindful that “[w]hen marks would appear on
virtually identical goods or services, the degree of similarity necessary to support a
conclusion of likely confusion declines.” Century 21 Real Estate Corp. v. Century Life
of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen
Enterprises Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007); Schering-Plough
HealthCare Products Inc. v. Ing-Jing Huang, 84 USPQ2d 1323, 1325 (TTAB 2007).
The two marks are similar in that they both include the literal element
WARRIOR. To this extent, the marks have some similarity in appearance, sound,
and meaning. They differ in that Applicant’s additional term WEEKEND is absent
from Opposer’s mark and Opposer’s additional term LIFESTYLES is absent from
Applicant’s mark. This fact results in substantial differences in appearance, sound
and meaning.
We note that the common element WARRIOR is the first word in Opposer’s mark,
but not the first word in Applicant’s mark. This fact suggests that the dominant
components of the two marks are different. See Presto Products Inc. v. Nice-Pak
Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“[I]t is often the first part of a
mark which is most likely to be impressed upon the mind of a purchaser and
remembered”). See also Palm Bay Imports v. Veuve Clicquot Ponsardin, 73 USPQ2d
at 1692 (“Veuve” is the most prominent part of the mark VEUVE CLICQUOT
Opposition No. 91213394
36

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).
We note that the word WEEKEND may be considered conceptually weak,
inasmuch as the weekend is commonly regarded as a time for recreational
activities, and so it is suggestive of goods, like those of the parties, having a
recreational purpose. However, we also note the alliteration on the letter W in
Applicant’s mark, which promotes perception of the two-word phrase as a unitary
mark. The alliteration and the unitary nature of the mark contribute to the mark’s
distinctiveness in ways that are not present in Opposer’s mark.
In sum, the two marks are similar in the important respect that they share the
literal term WARRIOR. However, they are different in a number of significant
ways, in that they have different first words and, to some extent, different sounds
and meanings.
(d) Conditions of sale.
Applicant points out that the parties’ goods are relatively costly and that, “[a]s a
result, purchasers are likely to be more discriminating and source-conscious when
making their purchasing decisions.”76 Torres testified that his first sales of toy
haulers manufactured by Applicant were at a price of $28,000.77 Applicant testified
that his toy hauler is offered for $35,000. Motor homes, which are also among the

76 Applicant’s brief at 22, 18 TTABVUE 26.
77 Torres 20:7-23. Applicant essentially confirmed this. Donati 42:5-21 (first sale at price of
$27,815), 10 TTABVUE 112, 245.
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goods identified by both parties, are substantially more expensive. Applicant
testified that his motor homes are offered at prices between $85,000 and $170,000.78
We agree with Applicant that, because the goods at issue are relatively expensive,
customers would exercise an elevated degree of care in selecting them and would
not purchase them on impulse. See In re Thor Tech, Inc., 113 USPQ2d 1546, 1551
(noting the prices of RV towable trailers, sport utility vehicles, and pick-up trucks,
“We infer from this evidence that purchasers of both types of goods would exercise a
high degree of care in making their purchasing decisions.”)
(e) Other du Pont factors.
As we have discussed above in part IV (B)(1)(c), Opposer’s brief alludes to the
fame of its mark, actual confusion, and Applicant’s bad faith adoption. For the
reasons set forth there, we find Opposer’s claim of fame to be unsupported; and we
find Opposer’s evidence of actual confusion and Applicant’s bad faith to be
unpersuasive.
(f) Conclusion as to pleaded Reg. No. 3789890.
Applicant’s goods are identical to those of Opposer and would be marketed
through the same trade channels to the same classes of customers. The parties’
marks are similar because they share the common term WARRIOR; however, there
are substantial differences between them in appearance, sound and meaning.
Moreover, the term WARRIOR has been shown to be somewhat weak in the
relevant industry. The goods at issue are costly and would be purchased with an

78 Donati 29:22-30:4, 10 TTABVUE 232-3.
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elevated degree of care. In light of the foregoing, we find the differences between the
parties’ marks to be sufficient such that confusion as to the sources of the parties’
goods is not likely.
C. Conclusion as to Opposer’s Section 2(d) claim.
Regarding Opposer’s common law claim, we have found that Opposer has
failed to demonstrate priority of use with respect to the mark WEEKEND
WARRIOR in connection with recreational vehicles. We have also found that
Opposer has failed to demonstrate a likelihood of confusion with respect to its two
registered marks. Moreover, we see no evidence or testimony of record suggesting
that Opposer’s combined use of its registered and common law marks has increased
the likelihood that Applicant’s mark, as applied to his goods, would be mistakenly
perceived as having any kind of connection to Opposer. After considering all of the
evidence of record relevant to the du Pont factors and all arguments of the parties,
including those not specifically discussed herein, we find that Opposer has not
demonstrated by a preponderance of the evidence that Applicant’s mark, as applied
to his goods, so resembles Opposer’s pleaded marks as to be likely to cause
confusion, mistake, or deception as to the source of Applicant’s goods. Accordingly,
Opposer’s claim under Section 2(d) is dismissed.
Decision: The opposition is DISMISSED with respect to Opposer’s claim under
Trademark Act § 2(d) and with respect to Opposer’s claim on the ground that
Applicant lacked a bona fide intention to use the mark when he filed his
application.