RBR, LLC

Trademark Trial and Appeal Board

Apr 5, 2010

No. 77451496 (T.T.A.B. Apr. 5, 2010)

Mailed: April 5, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re RBR, LLC
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Serial No. 77451496
______

Michael W. Garvey, Steven J. Solomon of Pearne & Gordon LLP
for RBR LLC.

David H. Stine, Trademark Examining Attorney, Law Office
114 (K. Margaret Le, Managing Attorney).
_______

Before Quinn, Zervas and Kuhlke, Administrative Trademark
Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

RBR, LLC seeks registration on the Principal Register
of the standard character mark CURRENT/ELLIOTT for goods
identified as “clothing, namely, jeans, pants, shirts,
jackets, t-shirts, dresses and skirts” in International
Class 25.1
Registration has been refused under Section 2(d) of
the Trademark Act, 15 U.S.C. §1052(d), on the ground that

1 Application Serial No. 77451496, filed April 18, 2008, under
Trademark Act Section 1(b), 15 U.S.C. §1051.

THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Serial No. 77451496
2
applicant’s mark, when used with its identified goods, so
resembles the registered typed mark CURRENT for, inter
alia, “scarves, hats, t-shirts, socks, sweatshirts,
pantyhose, ties, cloth baby bibs” in International Class
25,2 and the typed mark ELLIOTT for “men’s and boys’ shirts”
in International Class 25,3 as to be likely to cause
confusion, mistake or deception. The registrations are
owned by different entities.
Applicant has appealed the final refusal and the
appeal is fully briefed.
As a preliminary matter, the examining attorney’s
objection to evidence attached to applicant’s brief is
sustained. Trademark Rule 2.142(d). Applicant, in its
request for reconsideration, included a list of third-party
registrations. The examining attorney in the denial of the
request for reconsideration did not consider this list.
Mere listings of registrations are not sufficient to make
them of record. In re Dos Padres Inc., 49 USPQ2d 1860,
1861 n.2 (TTAB 1998). See also TBMP §1208.02 (2d ed. rev.
2004). Applicant argues that because “the Examining
Attorney did not object to the competence of this evidence

2 Registration No. 1825081, issued on March 8, 1994, renewed.

3 Registration No. 1960380, issued on March 5, 1996, renewed.

Serial No. 77451496
3
in his response to the Request for Reconsideration ... this
objection has been waived...” Reply Br. p. 8. While it is
true that if an applicant includes a listing of
registrations in a response to an Office action, and the
examining attorney does not advise applicant that the
listing is insufficient to make the registrations of record
at a point when applicant can correct the error, the
examining attorney will be deemed to have stipulated the
registrations into the record, this is not the case when
the listing was first provided in a request for
reconsideration. Compare In re Hayes, 62 USPQ2d 1443, 1445
n.3 (TTAB 2002) (Board considered third-party registrations
submitted with reply brief because applicant had submitted
copies of Official Gazettes showing marks published for
opposition during prosecution, and examining attorney did
not advise applicant that copies of the registrations were
necessary to make them of record) with In re Caserta, 46
USPQ2d 1088, 1090 n.4 (TTAB 1998) (list of third-party
registered marks from an unidentified source submitted with
request for reconsideration, and objected to by examining
attorney, not considered). See also TBMP §1208.02.4

4 We note that consideration of this evidence would not change
our determination.
Serial No. 77451496
4
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the 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). In any likelihood of confusion analysis,
two key considerations are the similarities between the
marks and the similarities between the goods. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976).
We address the refusal based on each of the cited
registrations separately.
Registration No. 1825081 for the mark CURRENT
Applicant’s and registrant’s identification of goods
include identical clothing items, namely, t-shirts. It is
sufficient for a finding of likelihood of confusion if the
relatedness is established for any item encompassed by the
identification of goods in the application.5 Tuxedo
Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335,

5 As to the remaining goods, we note that the examining attorney
did not submit any evidence to support his assertion that these
various clothing items are related. There is no per se rule that
various clothing items are related and citation to prior cases is
not sufficient to build a record in support of the case at hand.
There are also cases where clothing items are found not to be
Serial No. 77451496
5
209 USPQ 986 (CCPA 1981). Moreover, because the
application and registration do not contain any
restrictions as to channels of trade or classes of
purchasers, we must presume that the identifications
encompass all goods of the type described, that they move
in all channels of trade normal for these goods, and that
they are available to all classes of purchasers for the
described goods. See Hewlett-Packard Co. v. Packard Press
Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002);
Octocom Systems Inc. v. Houston Computers Services Inc.,
918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir. 1987); and In re
Linkvest S.A., 24 USPQ2d 1716 (TTAB 1992).
Applicant’s arguments that its goods are expensive and
limited to the high end of the market, and the relevant
consumers are sophisticated purchasers are not persuasive.
Because of the absence of such limitations from the
identifications set forth in the registration and the
application we must base our analysis on the least
sophisticated consumer for t-shirts and exposure to those
t-shirts in any ordinary channel of trade for t-shirts.

sufficiently related. See, e.g., In re Bulldog, Ltd. 224 USPQ
854, 855-56 (TTAB 1984) (and cases cited therein).
Serial No. 77451496
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Thus, the factors of the relatedness of the goods,
channels of trade and classes of purchasers weigh in favor
of a likelihood of confusion.
In determining the similarity between the marks we
analyze “the marks in their entireties as to appearance,
sound, connotation and commercial impression.” Palm Bay
Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)
quoting du Pont, 177 USPQ at 567.
In comparing applicant’s mark CURRENT/ELLIOTT to
registrant’s mark CURRENT, the examining attorney observes
that applicant’s mark “consists of a wholesale
appropriation of the registered mark [and] the addition of
another term ... fails to alter the overall commercial
impression of the other.” Br. p. 2. Further, the
examining attorney argues that “[t]here is very little
showing that ... the cited mark is inherently ‘weak’ and
even if such evidence is considered most favorably to
applicant’s position ... marks deemed ‘weak’ or merely
descriptive are still entitled to protection against the
registration by a subsequent user of a similar mark for
closely related goods and/or services ...[and] the overall
impression created by applicant’s addition of one term to
the other does not create a distinct or separable
Serial No. 77451496
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commercial impression, nor does it create a composite term
which has a wholly different meaning.” Br. p. 3.
Applicant maintains that the additional element
/ELLIOTT in its mark distinguishes it in appearance and
sound from registrant’s mark and evokes a different
connotation because applicant’s mark, as a combination of
the surnames of the designers of the brand, has a different
meaning from the CURRENT mark. In addition, citing Knight
Textile Corp. v. Jones Investment Co., 75 USPQ2d 1313 (TTAB
2005), applicant argues that the word CURRENT is highly
suggestive when applied to these goods and, therefore, the
addition of /ELLIOTT is sufficient to distinguish
applicant’s mark from registrant’s mark.
We take judicial notice of the following definition
for the word CURRENT:6
Current 3. popular; in vogue: current
fashions
www.dictionary.com, based on Random House Dictionary
(2010).
Based on this definition, the word CURRENT is, at the
very least, highly suggestive in the clothing field, in

6 University of Notre Dame du Lac v. J.C. Gourmet Food Imports
Co., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983) (The Board may take judicial notice of
dictionary definitions).

Serial No. 77451496
8
particular as used in registrant’s mark where it appears
alone without any other elements to evoke a different
meaning. By contrast, we agree with applicant that the
structure of its mark creates somewhat of an incongruity.
We find that the two words divided by the slash
CURRENT/ELLIOTT evoke the meaning of a combination of
separate names that creates a different connotation and
overall commercial impression sufficiently distinct from
the registrant’s CURRENT mark which simply evokes the
meaning current fashion, even on the identical goods, t-
shirts. Knight Textile, 75 USPQ2d 1313 (no likely
confusion between NORTON MCNAUGHTON ESSENTIALS for women’s
clothing and ESSENTIALS for similar goods because
“essentials” highly suggestive in clothing field). Cf. In
re L’Oreal S.A., 222 USPQ 925 (1984) (no likely confusion
where HAUTE MODE and HI FASHION are highly suggestive terms
in clothing field). See also Shen Manufacturing Co. v.
Ritz Hotel Ltd., 393 F.3d 1238, 73 USPQ2d 1350 (Fed. Cir.
2004).
In view thereof, despite use on identical goods, we
hold that confusion is not likely as to the mark in this
cited registration. Kellogg Co. v. Pack’em Enterprises
Inc., 951 F.2d 330, 21 USPQ2d 1142 (Fed. Cir. 1991).
Registration No. 1960380 for the mark ELLIOTT
Serial No. 77451496
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Applicant’s identification includes “shirts.” This
listing encompasses registrant’s listed goods “men’s and
boys’ shirts” and, as such, the goods in the application
and registration are legally identical.
Further, as discussed above in view of the absence of
limitations, applicant’s arguments regarding channels of
trade and classes of purchasers are not persuasive. We
must presume overlapping trade channels and purchasers.
We turn then to consider the similarities and
dissimilarities of applicant’s mark CURRENT/ELLIOTT and
registrant’s mark ELLIOTT. Again, the incongruity in
applicant’s mark brought about by its structure and the
connotation of separate names creates a different overall
commercial impression sufficiently distinct from the single
word ELLIOTT in registrant’s mark. See Shen, 73 USPQ2d
1350. This is particularly true here, where applicant’s
mark begins with a different word presenting a very
different appearance. Palm Bay, 73 USPQ2d at 1692 (first
word in the mark is the prominent feature); Presto Products
Inc. v. Nice-Pak Products Inc., 9 USPQ2d 1895, 1897 (TTAB
1988) (first part of mark most likely to be impressed on
Serial No. 77451496
10
mind of purchaser). Thus, the factor of the similarity of
the marks weighs against likelihood of confusion.7
In view thereof, again, despite use on identical
goods, we hold that confusion is not likely as to the mark
in this cited registration. Kellogg, 21 USPQ2d 1142.
Decision: The refusal to register under Section
2(d) of the Trademark Act is reversed.

7 In making this finding, we do not rely on applicant’s argument
that the word ELLIOTT is weak because it is primarily merely a
surname. First, the registration issued on the Principal
Register without a showing of acquired distinctiveness under
Section 2(f). Therefore, we must presume that it is inherently
distinctive. Moreover, ELLIOTT, at least phonetically, is both a
surname and a given name.