Red Bull GmbHv.American Baseball Co., Inc.

Trademark Trial and Appeal Board

May 21, 2004

No. 91150958 (T.T.A.B. May. 21, 2004)

Mailed:
May 21, 2004
Paper No. 20
Bottorff
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Red Bull GmbH
v.
American Baseball Company, Inc.
_____
Opposition No. 91150958
to application Serial No. 76201394
filed on January 29, 2001
_____
Opposition No. 91150961
to application Serial No. 76201393
filed on January 29, 2001
_____
Martin R. Greenstein of TechMark a Law Corporation for Red
Bull GmbH.
Robert B. Famiglio of Famiglio & Associates for American
Baseball Company, Inc.
______
Before Bucher, Bottorff and Holtzman, Administrative
Trademark Judges.
Opinion by Bottorff, Administrative Trademark Judge:
The above-captioned opposition proceedings were
consolidated by order of the Board dated January 22, 2003.
The cases are now ready for decision, and shall be decided
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Opposition Nos. 91150958 and 91150961
2
by the Board in this single opinion, which shall be entered
in the proceeding files of both proceedings.
In application Serial No. 76201394 (involved in
Opposition No. 91150958), applicant seeks registration on
the Principal Register of the mark BULL NECK (in typed form)
for goods identified in the application as “leather sports
equipment, namely baseball gloves,” in Class 28. In
application Serial No. 76201393 (involved in Opposition No.
91150961), applicant seeks registration of the mark PLAY
BALL WITH THE BULL (in typed form) for the same goods. Both
applications are based on applicant’s asserted bona fide
intention to use the respective marks in commerce, under
Trademark Act Section 1(b), 15 U.S.C. §1051(b).
Opposer has opposed registration of both of applicant’s
marks, alleging as its ground of opposition in both cases
that opposer is the prior user of the corporate name, trade
name and trademark RED BULL on and in connection with
various non-alcoholic beverages including energy drinks and
sports drinks, and on or in connection with other products
and services relating to or complementary to its beverages,
including sports equipment; that opposer is the owner of
Registration No. 2494093, which is of the mark RED BULL for
goods and services in numerous classes, including Class 28;
that opposer also owns “various trademarks for and which
include the word BULL, as well as the design or logo of a
Opposition Nos. 91150958 and 91150961
3
Bull” for the aforesaid goods and services; and that each of
applicant’s marks, as applied to the goods identified in the
applications, so resembles opposer’s marks as to be likely
to cause confusion, to cause mistake, or to deceive.
Trademark Act Section 2(d), 15 U.S.C. §1052(d).
In each case, applicant filed an answer by which it
essentially denied the salient allegations of the notices of
opposition.1
At trial, opposer presented evidence, but applicant did
not. Both parties filed main briefs, and opposer filed a
reply brief.2 No oral hearing was requested. For the
reasons discussed below, we dismiss the opposition in each
case.
The evidence of record consists of the pleadings; the
files of the opposed applications; status and title copies
of five registrations owned by opposer, submitted by opposer
via notice of reliance;3 and printouts of articles and other
1 Applicant’s answers also include allegations of various
affirmative defenses which either are not legally cognizable in
an opposition proceeding or which, in any event, were not
established at trial. We have given these allegations no
consideration.
2 Opposer’s motion to extend the time for filing its reply brief
is granted.
3 In the two notices of opposition, opposer specifically pleaded
only one registration, Reg. No. 2494093. The other four
registrations submitted via notice of reliance were not pleaded
by number. See Trademark Rule 2.106(b)(1). However, because
applicant in its brief has treated the unpleaded registrations as
being of record and at issue, we deem the pleadings in each of
the oppositions to be amended to include the additional
Opposition Nos. 91150958 and 91150961
4
materials downloaded from the Internet by opposer’s
attorney, submitted by opposer via notice of reliance.4
The five registrations made of record by opposer in
support of its Section 2(d) claim are:
- Registration No. 2494093, which is of the mark RED
BULL (in typed form) for goods and services in eighteen
classes.5 Opposer relies particularly on the following
goods and services identified in the registration: “balls
for … baseball” in Class 28; “sports drinks” and various
other non-alcoholic beverages in Class 32; “promoting sports
events and competitions for others” in Class 35; and “sports
competitions, namely, baseball and football games” in Class
41;
registrations. See Fed. R. Civ. P. 15(b); Time Warner
Entertainment Co. v. Jones, 65 USPQ2d 1650, 1653 n.2 (TTAB 2002).
4 Materials downloaded from the Internet are not self-
authenticating “printed publications” which may be made of record
via notice of reliance. See Trademark Rule 2.122(e), 37 C.F.R.
§2.122(e); Plyboo America Inc. v. Smith & Fong Co., 51 USPQ2d
1633, 1634 n.3 (TTAB 1999); Raccioppi v. Apogee Inc., 47 USPQ2d
1368, 1370 (TTAB 1998). However, because applicant has not
objected to these materials but instead has treated them as being
of record and at issue, we deem applicant to have waived any
objection to the admissibility of these materials, and we deem
them to be of record. See Conde Nast Publications Inc. v. Vogue
Travel, Inc., 205 USPQ 579, 580 n.5 (TTAB 1979); TBMP §704.08 at
n.204 (2d ed. June 2003). However, we have given the materials
only so much probative value as they deserve. In particular,
these documents are admissible and probative only for what they
show on their face, not for the truth of the matters asserted
therein. See, e.g., Harjo v. Pro-Football Inc., 50 USPQ2d 1705,
1721 n.50 (TTAB 1999); TBMP §704.08 at n.201 (2d ed. June 2003).
5 Issued October 2, 2001, pursuant to Trademark Act Section 44,
15 U.S.C. §1126. No use in commerce is alleged as to any of the
goods and services, which are in Classes 3, 5, 12, 14, 16, 18,
20, 25, 26, 28, 29, 30, 32, 34, 35, 39, 41 and 42.
Opposition Nos. 91150958 and 91150961
5
- Registration No. 1935272, which is of the mark RED
BULL (in typed form) for “malt liquor” in Class 32;6
- Registration No. 2579008, which is of the mark BULL
(in typed form) for various nonalcoholic beverages including
“energy and sports drinks” in Class 32;7
- Registration No. 2560956, which is of the mark ENERGY
BULL (ENERGY disclaimed) for goods and services in Classes
32, 33 and 42, including “sports drinks; energy drinks;
isotonic drinks, hypertonic drinks and hypotonic drinks, for
use and/or as required by athletes and those engaged in
active or stressful sports and activities” in Class 32, and
“technical consultation and research services in the field
of food and beverages, health and fitness, sports, sports
training and physical performance” in Class 42;8 and
- Registration No. 2524020, which is of the mark SPEEDY
BULL for goods in Classes 32, 33 and 34, including “sports
drinks; energy drinks; isotonic drinks, hypertonic drinks
and hypotonic drinks, for use and/or as required by athletes
6 Issued November 14, 1995 to Stroh Brewery Company and later
assigned to opposer; affidavits under Section 8 and 15 accepted
and acknowledged. The registration is based on use in commerce,
and September 1985 is alleged as the date of first use and first
use in commerce.
7 Issued June 11, 2002. The registration is based on use in
commerce, and alleges January 1987 as the date of first use, and
January 1996 as the date of first use in commerce.
8 Issued April 16, 2002, pursuant to Trademark Act Section 44, 15
U.S.C. §1126. No use in commerce is alleged.
Opposition Nos. 91150958 and 91150961
6
and those engaged in active or stressful sports and
activities” in Class 32.9
Because opposer has made of record status and title
copies of its registrations, we find that opposer has
established its standing to oppose. See, e.g., Lipton
Industries, Inc. v. Ralston Purina Company, 670 F.2d 1024,
213 USPQ 185 (CCPA 1982). Also, Section 2(d) priority is
not at issue in this case with respect to the marks and the
goods and/or services covered by opposer’s registrations.
See King Candy Co., Inc. v. Eunice King’s Kitchen, Inc., 496
F.2d 1400, 182 USPQ 108 (CCPA 1974). We turn now to the
Section 2(d) issue of whether a likelihood of confusion
exists as between applicant’s marks and any of the
registered marks made of record by opposer.
Our likelihood of confusion determination under Section
2(d) is based on an analysis of all of the probative facts
in evidence that are relevant to the likelihood of confusion
factors set forth in In re E. I. du Pont de Nemours and Co.,
476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In considering the
evidence of record on these factors, we keep in mind that
“[t]he fundamental inquiry mandated by §2(d) goes to the
cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.”
9 Issued January 1, 2002, pursuant to Trademark Act Section 44,
15 U.S.C. §1126. No use in commerce is alleged.
Opposition Nos. 91150958 and 91150961
7
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976).
Before we discuss the relevant du Pont factors, we must
address two contentions by opposer regarding its Internet
evidence, which appear to underlie opposer’s likelihood of
confusion arguments to a large extent. Specifically,
opposer argues that the Internet materials made of record
via notice of reliance establish two facts which support a
finding of likelihood of confusion. First, opposer
contends, the materials establish that there exists a “close
association” in the public’s mind between opposer’s RED BULL
energy drink and “baseball and baseball-related activities.”
Second, opposer contends, the materials establish that the
press and the purchasing public commonly refer to opposer
and/or to opposer’s RED BULL energy drink by the shortened
nickname “the Bull.” Aside from the hearsay problems with
this evidence, we are not persuaded that the evidence
establishes either of these contentions.
The fact that opposer was able to locate seven Internet
articles or postings which happen to mention both baseball
and opposer’s RED BULL beverage product does not establish
that there is any particular association between the two in
the public’s mind which would create or enhance a likelihood
of confusion. These articles refer only incidentally or
tangentially to opposer’s product, and always with reference
Opposition Nos. 91150958 and 91150961
8
to its caffeine content, not to any connection between the
product and the sport of baseball, per se.10 To the extent
10 The posting on WebMD.com is an article about a completely
different product, i.e., a caffeine/ephedrine dietary supplement
called “Ripped Fuel,” and its potential drawbacks when used by
professional baseball players. The article closes as follows:
Every baseball season, one supplement or another
becomes popular, Stout says. “Right now, for
instance, the Boston Red Sox are all drinking Red
Bull,” says Stout, who says …”I don’t have any
problem with that, because it is really only ginseng
tea and is harmless. There isn’t any ingredient in
it that can improve their performance, but they
think it does, so maybe it helps.”
Red Bull, according to its web site, is a high-
energy drink made from the amino acid taurine and
also contains caffeine.
The article’s statement that “the Boston Red Sox are all drinking
Red Bull” clearly is hearsay and not proof of the matter
asserted. In any event, the statement appears in the article in
the context of a discussion about professional baseball players’
use of dietary supplements generally; it does not prove opposer’s
contention that there is a “close association” in the public’s
mind between baseball and opposer’s product in particular.
The October 29, 2002 article from the Orange County Register
is about the Anaheim Angels’ 2002 World Series victory
celebration rally which was held at the ballpark and attended by
100,000 fans. Opposer’s Red Bull product is mentioned only in
passing, in the context of a discussion of how advertisers were
using the rally as a marketing opportunity: “It was a banner day
for advertisers who used small airplanes to get their messages
across, while others handed out freebies to lure potential
customers. A woman handing out Red Bull energy drinks from the
back of a sport utility vehicle rubbed her hands, cold from
digging into the ice and pulling out the beverage. ‘Do you want
a Red Bull?’ she asked.”
The July 3, 2002 posting on the East Coast Sports Network
website mentions Red Bull only in passing, and in connection with
late-night viewing of World Cup soccer, not baseball: “Well,
after a month of staying up ‘til all hours of the night to watch
the World Cup (my thanks to the man who invented Red Bull)…”
(footnote cont. next page)
The posting on the strikethree.com website discusses many
baseball topics, and includes a mention of Red Bull only at the
end, in the “About the author” tagline: “Michael Cox is now
officially really, really tired. Send Red Bull to [him], and
make it snappy.”
Opposition Nos. 91150958 and 91150961
9
that the Internet evidence might be deemed to show any
connection at all between opposer’s energy drink and the
sports world, it is with respect to opposer’s sponsorship of
“extreme” sports competitions and events such as
snowboarding, big mountain skiing, kitesurfing, street luge,
endurance cycling and cliff diving, not baseball.
Nor does opposer’s Internet evidence establish that the
public commonly refers to opposer or its products as “the
Bull.” There are seven postings which refer to opposer’s
product as “the Bull” or “Bull,” most of which use that term
only as part of a clever or punning headline;11 in the text
of these articles, opposer’s product is called “Red Bull.”
In any event, these usages of “the Bull” or “Bull” are in
reference only to opposer’s energy drink, which is already
The posting on the mlb.com website is an hour-by-hour
recounting of two fans’ “quest to make it to all 30 ballparks in
50 days.” At 4:21 a.m. of Day One, the two fans make their only
reference to Red Bull: “I think I see the sun rising in the
distance. We may stay up late every night hopped up on Red Bull
writing quirky leads about pine tar and the hour-to-hour
deterioration of our sanity…”
The August 23, 2003 article on espnmag.com includes, buried
deep in its text, the following rather random reference to Red
Bull: “My violin’s in the shop, or else I’d be playing it like
Charlie Daniels after six Red Bull vodkas…”
A similarly random reference to Red Bull appears in the
August 24, 2001 article from the Las Vegas Mercury about Cal
Ripken’s consecutive games streak: “…I believe some of us would
work 2,632 consecutive days if we were earning that kind of money
and even show up on time if we had stayed out the night before
drinking Red Bull and vodka at Studio 54 until 3 a.m.”
11 Examples are: “It’s a (Red) Bull Market After All”; “Running
of the Bull: How the Brand Got Hot”; “Get the Bull about ‘Red
Bull’”; “A Bull Market”; “The Rage Over the Bull”; and “The Bull
Witch Project.”
Opposition Nos. 91150958 and 91150961
10
covered by opposer’s Registration No. 2579008 of the mark
BULL. The evidence does not show use of “the Bull” or
“Bull” in reference to any of the other goods or services
covered by opposer’s registrations.
In short, the Internet evidence submitted by opposer
fails to prove opposer’s contentions that there is a close
association in the public’s mind between opposer or its
products and the sport of baseball, or that the public
commonly refers to opposer or its products as “the Bull” or
“Bull.” The evidence does not affect our likelihood of
confusion analysis in any material way, nor does it expand
the scope of protection to be accorded each of opposer’s
registered marks.
We turn now to the question of whether any of the
registrations made of record by opposer suffices as a
Section 2(d) bar to registration of applicant’s marks. We
shall consider each of opposer’s registrations in turn.12
Opposer’s Registration No. 2494093 is of the mark RED
BULL for, inter alia, “balls for … baseball” in Class 28,
“sports drinks” and various other non-alcoholic beverages in
Class 32, “promoting sports events and competitions for
12 To the extent that opposer’s arguments in its briefs might be
construed as a claim that opposer owns a family of “bull” marks,
we are not persuaded. Mere ownership of multiple registrations
with a common word or feature does not create a family of marks.
See, e.g., J & J Snack Foods Corp. v. McDonald’s Corp., 932 F.2d
1460, 18 USPQ2d 1889 (Fed. Cir. 1991); Consolidated Foods
Opposition Nos. 91150958 and 91150961
11
others” in Class 35, and “sports competitions, namely,
baseball and football games” in Class 41. Applicant’s
application Serial No. 76201394 seeks registration of the
mark BULL NECK for “leather sports equipment, namely
baseball gloves,” in Class 28.
We first must determine whether applicant’s mark and
opposer’s mark, when compared in their entireties in terms
of appearance, sound and connotation, are similar or
dissimilar in their overall commercial impressions. The
test is not whether the marks can be distinguished when
subjected to a side-by-side comparison, but rather whether
the marks are sufficiently similar in terms of their overall
commercial impression that confusion as to the source of the
goods offered under the respective marks is likely to
result. The focus is on the recollection of the average
purchaser, who normally retains a general rather than a
specific impression of trademarks. See Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975). Furthermore,
although the marks at issue must be considered in their
entireties, it is well-settled that one feature of a mark
may be more significant than another, and it is not improper
to give more weight to this dominant feature in determining
the commercial impression created by the mark. See In re
Corporation v. Sherwood Medical Industries Inc., 177 USPQ 279
(TTAB 1973).
Opposition Nos. 91150958 and 91150961
12
National Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir.
1985).
In terms of appearance and sound, opposer’s RED BULL
mark and applicant’s BULL NECK mark are similar to the
extent that both marks include the word BULL, but dissimilar
insofar as BULL is the second word in opposer’s mark and the
first word in applicant’s mark. Opposer argues that the
word BULL is an arbitrary term as applied to opposer’s
goods, and that it therefore is the dominant feature in the
commercial impression of its RED BULL mark and so should be
accorded greater weight in our comparison of the marks. We
are not persuaded. Although BULL is an arbitrary term, we
cannot ignore the word RED in opposer’s mark, which likewise
is an arbitrary term and is an integral component in the
commercial impression of opposer’s mark. Viewed as a whole,
opposer’s mark is a unitary phrase or expression, denoting a
red-colored bull.13 Applicant’s mark BULL NECK likewise is
a unitary expression with a well-understood meaning; it is a
noun denoting “a thick short powerful neck.” Webster’s
13 Opposer argues that the Internet evidence it has submitted,
which includes instances of the public’s use of the term “bull”
in reference to opposer’s product, shows that BULL is the
dominant feature in the commercial impression of opposer’s mark.
We are not persuaded. At best, this evidence shows that the word
“bull” lends itself to punning headlines and references, such as
“bull market.” See supra at footnote 11.
Opposition Nos. 91150958 and 91150961
13
Ninth New Collegiate Dictionary (1990) at 186.14 The
commercial impression created by applicant’s mark is not of
a red-colored bull (nor of a bull of any other color), but
rather is of the human anatomical feature known as a “bull
neck.”
The only point of similarity between the marks is that
they both include the word BULL. That point of similarity
is outweighed by the distinctly different manners in which
the word appears and is used in the respective marks.
When we consider the two marks in their entireties, as we
must, we find that they have distinctly different
connotations and that they create quite dissimilar overall
commercial impressions. Opposer’s contention that the marks
are similar because they both include the word BULL rests on
an improper dissection of the marks. Thus, we find that the
first du Pont factor, i.e., the similarity or dissimilarity
of the marks, weighs in applicant’s favor in our likelihood
of confusion analysis.
We turn next to the issue of the similarity or
dissimilarity of the parties’ goods, under the second
du Pont factor, and to the related issue of the similarity
or dissimilarity of the normal trade channels and classes of
14 The Board may take judicial notice of dictionary definitions.
See, e.g., University of Notre Dame du Lac v. J. C. Gourmet Food
Imports Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983).
Opposition Nos. 91150958 and 91150961
14
purchasers for such goods, under the third du Pont factor.
In making this determination, it is not necessary that the
respective goods or services be identical or even
competitive in order to support a finding of likelihood of
confusion. Rather, it is sufficient that the goods or
services are related in some manner, or that the
circumstances surrounding their marketing are such, that
they would be likely to be encountered by the same persons
in situations that would give rise, because of the marks
used thereon, to a mistaken belief that they originate from
or are in some way associated with the same source or that
there is an association or connection between the sources of
the respective goods or services. See In re Martin’s Famous
Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir.
1984); In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991); In
re International Telephone & Telegraph Corp., 197 USPQ2d 910
(TTAB 1978).
Applicant’s goods are “leather sports equipment, namely
baseball gloves,” in Class 28. The Class 28 goods in
opposer’s registration include “balls for … baseball.”
Opposer’s baseballs and applicant’s baseball gloves are
obviously complementary, related items which normally are
marketed in the same trade channels (such as sporting goods
stores and the sporting goods department of department
stores) and to the same classes of purchasers. We find that
Opposition Nos. 91150958 and 91150961
15
these goods are sufficiently related that source confusion
is likely to occur if the goods were to be marketed under
confusingly similar marks. As to these Class 28 goods in
opposer’s registration, therefore, we find that the second
and third du Pont factors weigh in opposer’s favor.
We find, however, that the other goods and services
identified in opposer’s registration and upon which opposer
relies for its Section 2(d) claim, i.e., “sports drinks” and
various other non-alcoholic beverages in Class 32,
“promoting sports events and competitions for others” in
Class 35, and “sports competitions, namely, baseball and
football games” in Class 41, are dissimilar and unrelated to
applicant’s baseball gloves, for purposes of Section 2(d).
Unlike opposer’s baseballs, these goods and services of
opposer’s are not sporting goods items which are self-
evidently similar or related to applicant’s “baseball
gloves,” and there is no evidence in the record which would
support a finding that any such relationship exists.
Opposer’s services include promoting and staging sports
competitions, including baseball games. However, there is
no evidence that opposer or any other provider of such
services also markets or permits others to market baseball
gloves under the same or a similar mark, or that any
manufacturer or marketer of baseball gloves provides the
services recited in opposer’s registration. There is no
Opposition Nos. 91150958 and 91150961
16
basis in the record for finding that purchasers would expect
or assume that baseball gloves originate from, or are
sponsored or approved by, the provider of such services.
Baseball gloves are highly specialized pieces of sports
equipment which normally are sold only in sporting goods
stores and in the sporting goods departments of department
stores. There is no evidence that baseball gloves normally
are sold or distributed (or ever sold or distributed) at
baseball games or exhibitions, either as sports equipment or
as souvenir items. Even assuming that spectators or
participants in the baseball games and exhibitions provided
by opposer might also own baseball gloves, or even might use
them while attending or participating in such baseball games
and exhibitions, that fact does not suffice to establish
that they are likely to assume that a source, sponsorship or
other relationship exists between baseball gloves and
baseball games or exhibitions which are offered under
confusingly similar marks.
Likewise, the evidence of record simply does not
support a finding that purchasers are likely to assume that
a source relationship exists between opposer’s “sports
drinks” and applicant’s baseball gloves. The goods
obviously are dissimilar in nature, one being a beverage and
the other being a specialized sporting goods item. There is
no evidence that opposer or any other manufacturer or
Opposition Nos. 91150958 and 91150961
17
marketer of sports drinks (or any other type of drink) also
markets or permits others to market baseball gloves under
the same or a similar mark, either as sports equipment or as
a promotional/merchandising item or collateral good. Again,
baseball gloves are specialized sporting goods equipment
sold in sporting goods stores and in sporting goods
departments of department stores. There is no evidence that
opposer’s sports drinks are sold in such trade channels, but
even assuming that they are, there is no basis for finding
that purchasers are likely to assume that any source,
sponsorship or other relationship between such disparate
goods exists. Finally, even assuming that sports drinks and
other beverages are consumed by spectators at baseball games
or by persons playing baseball, that fact does not suffice
to establish that such persons are likely to assume that a
source relationship exists between baseball gloves and such
beverages. In short, there is no basis in the record for
finding that purchasers are likely to assume that baseball
gloves originate from or are sponsored by the maker of a
sports drink, or that sports drinks originate from or are
sponsored by a maker of baseball gloves.
Thus, we find that opposer has failed to establish that
applicant’s baseball gloves are similar or related to the
goods and services in Classes 32, 35 and 41 upon which
opposer relies, and that the second and third du Pont
Opposition Nos. 91150958 and 91150961
18
factors (like the first du Pont factor) accordingly weigh in
applicant’s favor as to those goods and services. We find,
however, that applicant’s baseball gloves are similar and
related to opposer’s Class 28 “balls for … baseball,” and
that the second and third du Pont factors accordingly weigh
in opposer’s favor as to those goods.
Upon considering all of the du Pont factors as to which
evidence has been made of record, we find that there is no
likelihood of confusion between applicant’s mark BULL NECK
for baseball gloves and opposer’s mark RED BULL for the
Class 32, 35 and 41 goods and services in opposer’s
Registration No. 2393093. The respective marks are
dissimilar when viewed in their entireties, and the
respective goods and services have not been shown to be
related or similar.
Opposer’s Class 28 “balls for … baseball” are similar
and related to applicant’s baseball gloves. However, for
the reasons discussed above, we find that the parties’ marks
are too dissimilar to support a finding of likelihood of
confusion, even as to goods as closely related as baseballs
and baseball gloves. The marks present distinctly different
and dissimilar commercial impressions when they are viewed
in their entireties, such that purchasers are not likely to
be confused as to the source or sponsorship of the parties’
respective goods. The relatedness of the goods simply is
Opposition Nos. 91150958 and 91150961
19
outweighed by the overall dissimilarity of the marks. Cf.
Kellogg Co. v. Pack’Em Enterprises Inc., 14 USPQ2d 1545
(TTAB 1990), aff’d, 951 F.2d 330, 21 USPQ2d 1142 (Fed. Cir.
1991).
In short, opposer’s Registration No. 2494093 does not
bar registration of applicant’s BULL NECK mark for baseball
gloves.
We turn next to the issue of whether opposer’s RED BULL
Registration No. 2494093 bars registration of applicant’s
mark PLAY BALL WITH THE BULL. For the reasons discussed
above, we find that the “baseball gloves” identified in
applicant’s application are dissimilar and unrelated to the
Class 32, 35 and 41 goods and services upon which opposer
relies, and that they are similar and related to the Class
28 “balls for … baseball” identified in opposer’s
registration.
We also find that opposer’s RED BULL mark is dissimilar
rather than similar to applicant’s PLAY BALL WITH THE BULL
mark. Again, the only point of similarity between the two
marks is that both include the word BULL. Viewing the marks
in their entireties, as we must, we find that they look and
sound different, have different connotations, and present
dissimilar overall commercial impressions. Applicant’s mark
is an alliterative unitary phrase of five words and
syllables, which does not include or connote the word RED
Opposition Nos. 91150958 and 91150961
20
(or any other color), an integral component of the
commercial impression of opposer’s mark. Likewise,
opposer’s RED BULL mark lacks any reference to playing ball,
which is an integral component of the commercial impression
created by applicant’s mark. The only way that we could
conclude that these marks are similar would be if we
dissected the marks, focusing solely on the presence of the
word BULL in both marks and disregarding the obvious
differences in appearance, sound, connotation and overall
commercial impression of the respective marks. We cannot
conclude that purchasers would dissect the marks in such a
manner; rather, we find that purchasers viewing the marks in
their entireties will readily distinguish the marks, as well
as the sources of the respective goods and services sold
under the marks.
Based on the evidence of record petaining to the
relevant du Pont factors, we conclude that there is no
likelihood of confusion as between applicant’s PLAY BALL
WITH THE BULL mark for baseball gloves and opposer’s RED
BULL mark for the Class 32, 35 and 41 goods and services
identified in opposer’s registration. Even as to the
parties’ related goods, i.e., the Class 28 baseballs and
baseball gloves, we find that the marks simply are not
sufficiently similar to warrant a finding of likelihood of
confusion. Thus, opposer’s Registration No. 2494093 does
Opposition Nos. 91150958 and 91150961
21
not bar registration of applicant’s mark PLAY BALL WITH THE
BULL for baseball gloves.
We turn next to opposer’s Registration No. 1935272,
which is of the mark RED BULL for “malt liquor” in Class 32.
For the reasons discussed above, we find that opposer’s mark
RED BULL is dissimilar rather than similar to each of
applicant’s marks, BULL NECK and PLAY BALL WITH THE BULL.
When the marks are viewed in their entireties, the
differences in appearance, sound, connotation and overall
commercial impression outweigh the sole point of similarity,
i.e., the presence of the word BULL in the respective marks.
We also find that applicant’s baseball gloves are
unrelated and dissimilar to the “malt liquor” identified in
opposer’s registration, and that the normal trade channels
for the respective goods likewise are different. There is
no evidence that baseball gloves and malt liquor are ever
marketed by the same or a related source under the same or a
similar mark. Even assuming that opposer is correct in
contending (without supporting evidence) that malt liquor
(as opposed to beer) is sold and consumed at baseball games,
that fact does not suffice to establish the existence of a
source, sponsorship or other relationship between baseball
gloves and malt liquor in the minds of relevant purchasers.
In short, we find that opposer’s RED BULL mark is
dissimilar to applicant’s BULL NECK and PLAY BALL WITH THE
Opposition Nos. 91150958 and 91150961
22
BULL marks, and that applicant’s baseball gloves are
unrelated and dissimilar to opposer’s malt liquor. No
likelihood of confusion exists, and opposer’s Registration
No. 1935272 does not bar registration of either of
applicant’s marks.
Next, we consider opposer’s Registration No. 2579008,
which is of the mark BULL for various nonalcoholic beverages
including “energy and sports drinks” in Class 32. For the
reasons discussed above in connection with opposer’s
Registration No. 2494093, we find that opposer has failed to
establish the existence of any source, sponsorship or other
relationship between baseball gloves, the goods identified
in applicant’s applications, and the sports and energy
drinks identified in opposer’s registration. There is no
evidence that opposer or any other beverage maker uses or
permits use of its marks on baseball gloves, either as
sports equipment or as promotional or collateral goods. Nor
is there any evidence that makers of baseball gloves use
their marks on sports or energy drinks. Even assuming that
opposer’s beverages might be consumed by spectators at, or
participants in, baseball games, there simply is no basis in
the record for concluding that such purchasers are likely to
assume that the respective goods originate from or are
sponsored or approved by a single or related source.
Opposition Nos. 91150958 and 91150961
23
Applicant’s marks are similar to opposer’s BULL mark to
the extent that they include the word BULL, but that is the
only point of similarity. As noted above, BULL NECK is a
unitary phrase or expression denoting a human anatomical
feature, and PLAY BALL WITH THE BULL is an alliterative
five-word phrase with a unitary meaning. When we view the
respective marks in their entireties, as we must, we find
that they are sufficiently dissimilar that no source
confusion is likely. This is especially so in view of the
dissimilarity of the parties’ goods.
We conclude that confusion is unlikely to result from
applicant’s use of either its BULL NECK or its PLAY BALL
WITH THE BULL marks on baseball gloves and opposer’s use of
the mark BULL on sports and energy drinks. Opposer’s
Registration No. 2579008 accordingly does not bar
registration of either of applicant’s marks.
Remaining for consideration are opposer’s Registration
No. 2524020, which is of the mark SPEEDY BULL for, inter
alia, “sports drinks; energy drinks; isotonic drinks,
hypertonic drinks and hypotonic drinks, for use and/or as
required by athletes and those engaged in active or
stressful sports and activities” in Class 32, and opposer’s
Registration No. 2560956, which is of the mark ENERGY BULL
(ENERGY disclaimed) for those same Class 32 goods as well as
for “technical consultation and research services in the
Opposition Nos. 91150958 and 91150961
24
field of food and beverages, health and fitness, sports,
sports training and physical performance” in Class 42.
Viewing the marks in their entireties, we find that
applicant’s BULL NECK mark is dissimilar rather than similar
to opposer’s SPEEDY BULL and ENERGY BULL marks. As was the
case in our comparison of applicant’s BULL NECK mark and
opposer’s other marks, the only point of similarity between
these marks is the word BULL, and that point of similarity
is outweighed by the differences in the marks’ appearance,
sound, connotation and overall commercial impression. The
same is true for applicant’s PLAY BALL WITH THE BULL mark.
The mere presence of the word BULL in the marks is an
insufficient basis for finding that the marks, in their
entireties, are confusingly similar.
We also find that applicant’s baseball gloves are
unrelated and dissimilar to the beverage products covered by
opposer’s registrations. It is true that these products
both might be used by athletes, including baseball players.
As discussed above, however, there is no evidentiary basis
for concluding that opposer or any other beverage maker also
markets or permits others to market baseball gloves under
the same or a similar mark, or that makers of baseball
gloves also market beverage products like opposer’s. Even
if we presume that opposer’s beverages are marketed in the
same trade channels and to the same purchasers as
Opposition Nos. 91150958 and 91150961
25
applicant’s baseball gloves, the evidence of record simply
does not support a finding that purchasers are likely to
assume the existence of a source, sponsorship or other
connection between these products. The same is true with
respect to the “technical consultation and research services
in the field of food and beverages, health and fitness,
sports, sports training and physical performance” recited in
opposer’s ENERGY BULL registration. There is no evidentiary
basis for finding that purchasers will assume that a
provider of such services also markets baseball gloves, or
that a baseball glove maker also provides services such as
opposer’s.
We conclude that there is no likelihood of confusion
between either applicant’s BULL NECK mark or its PLAY BALL
WITH THE BULL mark for baseball gloves and opposer’s SPEEDY
BULL or its ENERGY BULL mark for the goods and services
identified in opposer’s registrations. Accordingly,
opposer’s Registration Nos. 2524020 and 2560956 do not bar
registration of either of applicant’s marks.
In summary, we find that opposer has failed to carry
its burden of proving that there is a likelihood of
confusion between either of applicant’s marks, as used on
baseball gloves, and any of opposer’s marks, as used on or
in connection with the goods and services identified in
opposer’s registrations. Opposer therefore has failed to
Opposition Nos. 91150958 and 91150961
26
make out its Section 2(d) ground of opposition in each of
these opposition proceedings.
Decision: Opposition Nos. 91150958 and 91150961 are
dismissed.