Real Underwear Inc.v.Travis Jones, Curtis Baker and Michael Merchant

Trademark Trial and Appeal Board

Jun 29, 2018

No. 91229142 (T.T.A.B. Jun. 29, 2018)

Mailed: June 29, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
Real Underwear Inc.
v.
Travis Jones, Curtis Baker and Michael Merchant
————
Opposition No. 91229142
________
Zeynel Karcioglu of Jacobs & Burleigh LLP,
for Real Underwear Inc.
Travis Jones, Curtis Baker and Michael Merchant, pro se.
————
Before Wellington, Gorowitz and Pologeorgis,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Travis Jones, Curtis Baker and Michael Merchant (“Applicants”) have jointly
applied to register the mark REAL CLOTHING (in standard characters; CLOTHING
disclaimed) on the Principal Register for “hats; hooded sweatshirts; jackets; socks; T-
shirts” in International Class 25.1

1 Application Serial No. 86840200, filed on December 4, 2015, based on an allegation of use
in commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming May 1,
2015 as both the date of first use and the date of first use in commerce.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91229142
2
Real Underwear Inc. (“Opposer”) opposes registration of Applicants’ mark on the
ground of likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), based on Opposer’s asserted prior common law rights in the marks REAL,
REAL (stylized) and REAL UNDERWEAR for various clothing and garments.
Opposer also pleaded ownership of the following two applications:
1. Application Serial No. 86138495 for the stylized mark REAL for
various clothing items; and

2. Application Serial No. 87074372 for the mark REAL UNDERWEAR
also for various clothing items including bras, bralettes, and ladies’
underwear.

In their answer, Applicants admitted that (1) they filed application Serial No.
86840200 for the mark REAL CLOTHING, and (2) the term “CLOTHING” was
disclaimed in their application which proceeded to publication on May 24, 2016.2
Applicants, however, denied the remaining allegations in the notice of opposition.
Additionally, Applicants asserted the following purported affirmative defenses: (1)
the notice of opposition fails to state a claim upon which relief may be granted; (2)
there is no likelihood of confusion between Opposer’s and Applicants’ marks; (3)
Opposer has not been damaged; (4) Opposer will not be damaged by the registration
of Applicants’ mark; and (5) Opposer’s marks are not famous or well-known and
accordingly, Applicants’ mark does not “dilute” Opposer’s marks.3 Insofar as

2 Applicants’ Answer ¶¶ 5 and 6, 4 TTABVUE 3-4.
3 Id.; 4 TTABVUE 5. We note that Opposer has not pleaded dilution as a ground for opposition
nor has Opposer pleaded that its marks are famous or that the registration of Applicants’
mark would dilute Opposer’s pleaded marks. Accordingly, Applicants’ Affirmative Defense
No. 5 is misplaced and will be given no consideration.
Opposition No. 91229142
3
Applicants neither filed a formal motion to dismiss for failure to state a claim,
pursuant to Fed R. Civ. P. 12(b)(6) during the interlocutory phase of this proceeding,
nor submitted a trial brief arguing this asserted affirmative defense, it is hereby
deemed waived. Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d
1750, 1753 n.6 (TTAB 2013). As for the remaining purported affirmative defenses
(except for the defense regarding the fame and dilution of Opposer’s pleaded marks),
we deem them mere amplifications of Applicants’ denials in their answer. See Order
of Sons of Italy in America v. Profumi Fratelli Nostra AG, 36 USPQ2d 1221, 1223
(TTAB 1995).
I. The Record
The record includes the pleadings and, pursuant to Trademark Rule 2.122(b), 37
C.F.R. § 2.122(b), Applicants’ application file. The record also comprises the testimony
and evidence summarized below. Additionally, Opposer, by way of notices of reliance,
submitted printouts from various websites downloaded from the Internet. Although
admissible for what they show on their face, see Trademark Rule 2.122(e)(2), 37
C.F.R. § 2.122(e)(2), this evidence also contains hearsay that may not be relied upon
for the truth of the matters asserted unless supported by testimony or other evidence.
Fed. R. Evid. 801(c); Safer, Inc. v. OMS Invs., Inc., 94 USPQ2d 1031, 1039-40 (TTAB
2010); Trademark Trial and Appeal Board Manual of Procedure (“TBMP”) § 704.08(b)
(June 2017) (“The probative value of Internet documents is limited. They can be used
to demonstrate what the documents show on their face. However, documents obtained
through the Internet may not be used to demonstrate the truth of what has been
printed.”).
Opposition No. 91229142
4
A. Opposer’s Evidence4
1. Testimony Declaration of Morris Rishty, Opposer’s Chief Executive
Officer (“Rishty Decl.”);5
2. Opposer’s Notice of Reliance (“NOR”) No. 1 consisting of a printout
of an official record from the New York State Secretary of State’s
Division of Corporation regarding the corporate status of Opposer;6
3. Opposer’s NOR No. 2 consisting of a prior version of Opposer’s
website located at www.realunderwear.com as of 2009 obtained via
the website archive.org;7
4. Opposer’s NOR No. 3 consisting of a prior version of Opposer’s
website located at www.realunderwear.com as of 2013 obtained via
the website archive.org;8
5. Opposer’s NOR No. 4 consisting of a prior version of Opposer’s
website located at www.realunderwear.com as of 2014 obtained via
the website archive.org;9
6. Opposer’s NOR No. 5 consisting of a printout of a screenshot from
the Fox Business New website featuring Opposer;10
7. Opposer’s NOR No. 6 consisting of an article downloaded from the
website of The Lingerie Journal, dated May 16, 2014, purportedly
featuring Opposer’s clothing items offered under its REAL
UNDERWEAR trade name;11
8. Opposer’s NOR No. 7 consisting of an article downloaded from the
Huffington Post website, dated May 22, 2017 and purportedly
featuring Opposer’s REAL clothing items;12
9. Opposer’s NOR. No. 8 consisting of a copy of Opposer’s requests for
admission served on Applicants on November 3, 2016 to which
Opposer contends no responses were made or served by
Applicants;13
10. Opposer’s NOR No. 9 consisting of a copy of the specimen of use
purportedly submitted by Applicant in connection with its involved
application;14
11. Opposer’s NOR No. 10 consisting of a printout downloaded from the
internet depicting a current version of Opposer’s website located at
www.realunderwear.com;15
Opposition No. 91229142
5
12. Opposer’s NOR No. 11 consisting of a copy of the specimen of use
purportedly submitted by Opposer in connection with its pleaded
application Serial No. 87074372;16 and
13. Opposer’s NOR No. 12 consisting of a copy of the specimen of use
purportedly submitted by Opposer in connection with its pleaded
application Serial No. 87066530.17
B. Applicants’ Evidence
Applicants did not submit any testimony or evidence during their assigned

4 Although Opposer pleaded ownership of two applications in its notice of opposition, Opposer
failed to submit a status and title copy of either application during its assigned testimony
period. To the extent Opposer is under the belief that its pleaded applications were
automatically of record pursuant to Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), Opposer
is mistaken. “This Rule provides that ‘an application against which a notice of opposition is
filed . . . forms part of the record of the proceeding without any action by the parties. . .,’ not
a plaintiff’s pleaded pending application.” WeaponX Performance Prods. Ltd. v. Weapon X
Motorsports, Inc., 126 USPQ2d 1034, 1040 (TTAB 2018). In order for Opposer’s pleaded
pending applications to be received in evidence and made part of the record, Opposer had to
file a copy of each of its two pleaded pending applications showing the current status and
title under its notice of reliance during its assigned testimony period. Id.; see also Giersch v.
Scripps Networks, 90 USPQ2d 1020, 1022 (TTAB 2009) (pending application must be
properly introduced). Inasmuch as Opposer failed to do so, we will give no consideration to
these two pleaded applications in our determination herein.
5 11 TTABVUE.
6 10 TTABVUE 3-4.
7 10 TTABVUE 5-9.
8 10 TTABVUE 10-12.
9 10 TTABVUE 13-17.
10 10 TTABVUE 18-26.
11 10 TTABVUE 27-37.
12 10 TTABVUE 38-47.
13 10 TTABVUE 48-53.
14 10 TTABVUE 55-57.
15 10 TTABVUE 64-79.
16 10 TTABVUE 58-59.
17 10 TTABVUE 60-63.
Opposition No. 91229142
6
testimony period nor did they file a trial brief.
II. Standing
Standing is a threshold issue that must be proven by the plaintiff in every inter
partes case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
USPQ2d 1058, 1062 (Fed. Cir. 2014); Lipton Indus., Inc. v. Ralston Purina Co., 670
F.2d 1024, 213 USPQ 185, 189 (CCPA 1982) (“The facts regarding standing . . . must
be affirmatively proved. Accordingly, [plaintiff] is not entitled to standing solely
because of the allegations in its [pleading].”). Our primary reviewing court, the U.S.
Court of Appeals for the Federal Circuit, has enunciated a liberal threshold for
determining standing, namely that a plaintiff must demonstrate that it possesses a
“real interest” in a proceeding beyond that of a mere intermeddler, and “a reasonable
basis for his belief of damage.” Empresa Cubana Del Tabaco, 111 USPQ2d at 1062
(citing Ritchie v. Simpson, 170 F.3d 1902, 50 USPQ2d 1023, 1025-26 (Fed. Cir. 1999)).
To prove a “real interest” in this case, Opposer must show that it has a “direct and
personal stake” in the outcome herein and is more than a “mere intermeddler.” See
Ritchie v. Simpson, 50 USPQ2d at 1026; see also Jewelers Vigilance Committee Inc.
v. Ullenberg Corp., 853 F.2d 888, 7 USPQ2d 1628 (Fed. Cir. 1988).
Opposer has demonstrated, through the uncontroverted testimony declaration of
its Chief Executive Officer, Mr. Morris Rishty, that (1) since October 2005, Opposer
has used the trade name REAL UNDERWEAR and the trademark REAL in
connection with its advertisement, promotion and sale of clothing and apparel,
namely, at that time, women’s lingerie and undergarments; (2) at all times, Opposer
sold garments primarily under its REAL UNDERWEAR brand name, but sold
Opposition No. 91229142
7
garments bearing hangtags with the trademark REAL on them, and furthermore
each and every garment that Opposer sold was sent out in a box bearing the brand
name REAL UNDERWEAR; (3) at least as early as 2012, Opposer began branding
its goods with the stylized REAL trademark; (4) Opposer has at all times intended to,
and has expanded its product line and, relevant to this proceeding, sells t-shirts
bearing the stylized REAL trademark; and (5) Opposer has, since 2010, sold more
than forty million dollars-worth of t-shirts, undershirts, undergarments, and other
garments across the United States.18
We find this testimony sufficient to demonstrate that Opposer is not a mere
intermeddler but has a direct and personal stake in this proceeding, as a competitor
of Applicants, and therefore has a reasonable basis for its belief of damage stemming
from the registration of a purportedly confusingly similar mark for various clothing
items.19 Syngenta Crop Protection Inc. v. Bio-Chek LLC, 90 USPQ2d 1112 (TTAB
2009) (testimony sufficient to support standing); Panda Travel Inc. v. Resort Option
Enters. Inc., 94 USPQ2d 1789 (TTAB 2009) (testimony sufficient to support standing).
III. Likelihood of Confusion
To prevail on the ground of likelihood of confusion under Section 2(d) of the
Trademark Act, based on a previously used mark, it is the Opposer’s burden to prove
by a preponderance of the evidence both priority of use and likelihood of confusion.
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1848 (Fed. Cir.

18 Rishty Decl. ¶¶ 5-9; 11 TTABVUE 3-4.
19 We further note that Applicants do not contest Opposer’s standing in this case.
Opposition No. 91229142
8
2000); Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317, 209 USPQ 40, 43
(CCPA 1981); Life Zone Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1959 (TTAB
2008).
A. Priority of Use
Because Opposer relies solely on its asserted common law rights, it must prove
ownership and prior common law use of the mark REAL, the stylized mark REAL
and the mark REAL UNDERWEAR by a preponderance of the evidence before any
date upon which Applicants may rely. See Embarcadero Techs., Inc. v. RStudio, Inc.,
105 USPQ2d 1825, 1834 (TTAB 2013) (citing Hydro-Dynamics Inc. v. George Putnam
& Co., 811 F.2d 1470, 1 USPQ2d 1772, 1773 (Fed. Cir. 1987)).
Insofar as Applicants did not submit any testimony or evidence during their
assigned testimony period, Applicants have not demonstrated actual use of their
REAL CLOTHING mark for the goods identified in their involved use-based
application prior to the filing date of the application. Accordingly, the earliest date
that Applicants may only rely on for priority purposes is their application filing date,
i.e., December 4, 2015, as their constructive use date. See, e.g., Syngenta, 90 USPQ2d
at 1119; Levi Strauss & Co. v. R. Josephs Sportswear, Inc., 30 USPQ2d 1328, 1332
(TTAB 1994) (an application filing date for a use-based application can establish first
use of a mark).
As noted above, Opposer submitted the unrebutted testimony declaration of
Opposer’s Chief Executive Officer, Mr. Rishty, who declares, in relevant part, as
follows:
Opposition No. 91229142
9
Since October 2005, RUI has used the trade name REAL UNDERWEAR
and the trademark REAL in connection with its advertisement, promotion
and sale of clothing and apparel, namely, at that time, women’s lingerie
and undergarments.

At that time, RUI sold garments primarily under its REAL UNDERWEAR
brand name, but sold garments bearing hangtags with the trademark
REAL on them, and furthermore each and every garment that RUI sold
was sent out in a box bearing the brand name REAL UNDERWEAR.

At least as early as 2012, RUI began branding its goods with the stylized
“real” trademark.

RUI has at all times intended to, and has expanded its product line and,
relevant to this proceeding, and sells t-shirts bearing the stylized REAL
trademark.

Based on the foregoing evidence, Opposer, through its testimony, has established
by a preponderance of the evidence prior proprietary rights in its common law REAL
mark and REAL UNDERWEAR mark for women’s lingerie and undergarments at
least as early as 2005, as well as prior proprietary rights in its stylized REAL mark
also for women’s lingerie and undergarments at least as early as 2012. See
Powermatics, Inc. v. Globe Roofing Products Co., 341 F.2d 127, 144 USPQ 430, 432
(CCPA 1965) (a party may establish priority by testimony alone); Nat’l Blank Book
Co. v. Leather Crafted Products, Inc., 218 USPQ 827, 828 (TTAB 1983). Although
Opposer’s testimony indicates that Opposer has used its stylized REAL mark on or
in connection with T-shirts, said testimony fails to demonstrate clearly when such
use commenced. Accordingly, Opposer has failed to establish prior common law use
of its stylized REAL mark for T-shirts. Notwithstanding, Opposer’s use of its pleaded
marks for women’s lingerie and undergarments clearly predate Applicants’
constructive date of first use.
Opposition No. 91229142
10
B. Similarity of the Marks
We now consider the first du Pont likelihood of confusion factor, which involves
an analysis of the similarity or dissimilarity of the marks 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, 1691 (Fed Cir. 2005) (quoting du Pont, 177 USPQ at 567). “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 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) (internal citation omitted). The focus is on the recollection of the
average purchaser, who normally retains a general rather than a specific impression
of trademarks. In re Binion, 93 USPQ2d 1531, 1534 (TTAB 2009); Sealed Air Corp.
v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). Our analysis cannot be
predicated on dissection of the involved marks. See Stone Lion Capital Partners, LP
v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014). Rather,
we are obliged to consider the marks in their entireties. Id.; see also Franklin Mint
Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is
axiomatic that a mark should not be dissected and considered piecemeal; rather, it
must be considered as a whole in determining likelihood of confusion.”). Nonetheless,
there is nothing improper in stating that, for rational reasons, more or less weight
has been given to a particular feature of a mark, provided the ultimate conclusion
rests on a consideration of the marks in their entireties. Stone Lion, 110 USPQ2d at
Opposition No. 91229142
11
1161.
Applicants’ mark is REAL CLOTHING in standard characters. Opposer’s marks
are REAL, the stylized mark REAL, i.e., ,20 and REAL UNDERWEAR.
Here, Applicants have incorporated Opposer’s entire REAL mark as a significant
feature of their own mark. Likelihood of confusion has been frequently found where
one mark incorporates the entirety of another mark. See, e.g., In re Mighty Leaf Tea,
601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (applicant’s mark ML is
similar to registrant's mark ML MARK LEES); Lilly Pulitzer, Inc. v. Lilli Ann Corp.,
376 F.2d 324, 153 USPQ 406, 407 (CCPA 1967) (THE LILLY as a mark for women's
dresses is likely to be confused with LILLI ANN for women’s apparel including
dresses); Hunter Indus., Inc. v. Toro Co., 110 USPQ2d 1651, 1660 (TTAB 2014). The
inclusion of the term CLOTHING in Applicants’ mark, as well as the word
UNDERWEAR in one of Opposer’s pleaded mark, is less significant given the fact
that such wording is generic of Applicants’ and Opposer’s identified goods and, in
Applicants’ case, has been appropriately disclaimed. See, e.g., In re Dixie Rests., Inc.,
105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (“DELTA,” not the
disclaimed generic term “CAFE,” is the dominant portion of the mark THE DELTA
CAFE).

20 The display of Opposer’s stylized REAL mark may be found in the screenshots of various
versions of Opposer’s website www.realunderwear.com submitted under its notices of
reliance, which Opposer testifies are “accurate depictions” of its websites. Opposer’s NOR
Nos. 2-4, 10 TTABVUE 5-17; Rishty Decl. ¶ 17, 11 TTABVUE 4.
Opposition No. 91229142
12
Furthermore, Applicants’ mark is a standard character mark, and marks
appearing in standard character form may be displayed in any stylization, font, color
and size, including the identical stylization of Opposer’s stylized REAL mark, because
the rights reside in the wording and not in any particular display or rendition. See
Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983) (a mark
in standard character form is not limited to the depiction thereof in any special form).
Finally, we note that there is no evidence of record that Opposer’s pleaded REAL
marks are weak when used in connection with its pleaded goods so as to narrow the
scope of protection afforded to Opposer’s pleaded marks.
While we have not overlooked the stylization of Opposer’s pleaded REAL mark or
the inclusion of the generic term CLOTHING in Applicants’ mark or the addition of
the term UNDERWEAR in one of Opposer’s pleaded marks, we nonetheless conclude
that Applicants’ mark and Opposer’s pleaded marks, when considered in their
entireties, are substantially similar in sound, appearance, connotation and
commercial impression. Therefore, the first du Pont factor supports a conclusion that
confusion is likely.
C. Similarity of Goods
We next address the du Pont likelihood of confusion factor focusing on the
comparison of the goods at issue. It is settled that it is not necessary that the
respective goods be identical or even competitive in order to find that they are related
for purposes of our likelihood of confusion analysis. The respective goods need only
be “related in some manner and/or if the circumstances surrounding their marketing
[be] such that they could give rise to the mistaken belief that goods emanate from the
Opposition No. 91229142
13
same source.” Coach Servs., 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler,
83 USPQ2d 1715, 1724 (TTAB 2007)); see also In re Martin’s Famous Pastry Shoppe,
Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984); In re Melville Corp., 18
USPQ2d 1386, 1388 (TTAB 1991).
Applicants’ goods are identified as “hats; hooded sweatshirts; jackets; jeans; socks;
T-shirts.” As noted above, Opposer’s has demonstrated prior use of all of its pleaded
REAL marks on women’s lingerie and undergarments. Opposer, however, did not
submit any evidence demonstrating that lingerie and undergarments are related to
any of Applicants’ identified goods.21 Nevertheless, we note that when both an
opposer and an applicant are using or intend to use the identical or substantially
similar designation and there is no evidence that the designation is weak for the
goods at issue, as is the case here, “the relationship between the goods on which the
parties use their marks need not be as great or as close as in the situation where the
marks are not identical or strikingly similar.” See In re Shell Oil Co., 992 F.2d 1204,
26 USPQ2d 1687, 1689 (Fed. Cir. 1992) (“[E]ven when goods or services are not
competitive or intrinsically related, the use of identical marks can lead to an
assumption that there is a common source”); see also Amcor, Inc. v. Amcor Industries,
Inc., 210 USPQ 70, 78 (TTAB 1981).
We further note that the Board, as well as our primary reviewing court, albeit on

21 While Opposer testified that it uses its pleaded stylized REAL mark on or in connection
with T-shirts, Opposer failed to establish prior proprietary use of this pleaded mark on such
goods. For that reason, we have not considered Opposer’s T-shirts in our analysis.
Opposition No. 91229142
14
different records, have held that various different clothing items are related for
likelihood of confusion purposes. See, e.g., Cambridge Rubber Co. v. Cluett, Peabody
& Co., 286 F.2d 623, 128 USPQ 549, 550 (CCPA 1961)22 (women’s boots related to
men’s and boys’ underwear); Jockey Int’l, Inc. v. Mallory & Church Corp., 25 USPQ2d
1233, 1236 (TTAB 1992) (underwear related to neckties); In re Mercedes Slacks, Ltd.,
213 USPQ 397, 398-99 (TTAB 1982) (TTAB 1982) (hosiery related to trousers).
Here, both Opposer’s goods and Applicant’s goods are comprised of common
clothing items which would be purchased and worn together by the same individuals.
Moreover, Opposer’s goods include “undergarments” and Applicants’ identified goods
include “T-shirts.” “Undergarment” is defined as a “garment to be worn under
another.”23 “T-shirt,” in relevant part, is defined as “… a collarless and short-sleeve
or sleeveless usually cotton undershirt….”24 Based on these definitions, Opposer’s
undergarments could be viewed as encompassing Applicants’ T-shirts. As such, the
parties’ respective goods, if not identical in part, are clearly closely related clothing
items, particularly considering that they are offered for sale under substantially
similar marks.
Thus, this du Pont factor also favors a finding of likelihood of confusion.

22 The predecessor to our primary reviewing court, the Court of Appeals for the Federal Cir-
cuit.
23 Merriam-Webster’s Collegiate Dictionary retrieved from www.meriam-webster.com. The
Board may take judicial notice of dictionary definitions, including online dictionaries that
exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014),
aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); In re Red Bull GmbH, 78 USPQ2d
1375, 1378 (TTAB 2006).
24 Merriam-Webster’s Collegiate Dictionary retrieved from www.meriam-webster.com.
Opposition No. 91229142
15
D. Similarity in Trade Channels and Classes of Purchasers
Next we consider established, likely-to-continue channels of trade, the third du
Pont factor. We initially note that since there are no restrictions as to trade channels
or classes of purchasers set forth in the identification of goods of Applicants’ involved
application, we presume Applicants’ goods travel through all usual channels of trade
for such goods, e.g., department stores and online marketplaces, and are offered to all
normal potential purchasers for such goods, the general public. Paula Payne Prods.
Co. v. Johnson Publ’g Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA); see also Stone
Lion, 110 USPQ2d at 1161. Opposer’s CEO has testified that Opposer sells its goods
in department stores, i.e., TJ Maxx, Marshall’s, Sears, JC Penny, and Urban
Outfitters, online marketplaces such as Amazon.com, as well as through its own
website, www.realunderwear.com.25 Accordingly, we find that both Opposer’s goods
and Applicant’s goods travel in the same channels of trade and are offered to the same
average clothing consumer.
In view of the foregoing, the third du Pont factor also weighs in favor of finding a
likelihood of confusion.
IV. Conclusion
We have considered all of Opposer’s arguments and evidence of record, including
those not specifically discussed herein, and all relevant du Pont factors. Because we
have found that the marks at issue are substantially similar; that Applicants’
identified goods are related to Opposer’s goods; that they would move in the same or

25 Rishty Decl., ¶¶ 12 and 14, 11 TTABVUE 4.
Opposition No. 91229142
16
overlapping trade channels; and that they are offered to the same or overlapping
classes of purchasers, we conclude that Applicants’ REAL CLOTHING mark so
resembles Opposer’s REAL marks as to be likely to cause confusion or mistake, or to
deceive under Section 2(d) of the Trademark Act.
Decision: The opposition to registration of Applicants’ REAL CLOTHING mark
under Section 2(d) of the Trademark Act is sustained.