Ripple Kids Inc.

Trademark Trial and Appeal Board

Jul 14, 2010

No. 77492885 (T.T.A.B. Jul. 14, 2010)

Mailed:
July 14, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Ripple Kids Inc.
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Serial No. 77492885 and 77493208
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Julie L. Dalke of Latham & Watkins LLP, for Ripple Kids Inc.

Frank J. Lattuca and Richard F. White, Trademark Examining
Attorneys, Law Office 109 (Dan Vavonese, Managing Attorney).
_______

Before Holtzman, Cataldo, and Ritchie, Administrative Trademark
Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Ripple Kids Inc. (“applicant”) filed an application to
register the mark RIPPLE KIDS, in standard character format, for
goods identified as “stationery and writing materials, namely,
blank writing journals, notebooks, address books, daily
planners, stickers, bookmarks, folders, pencils, pens, pencil
cases, pencil boxes, printed award certificates, letterhead
paper, business cards, postcards” in International Class 16; and
“clothing and apparel, namely, t-shirts, tank tops, caps,
sweatshirts, beanies, jackets, golf shirts,” in International
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77564969
2
Class 25.1 Applicant also filed a second application to register
the mark shown below, for the same identified goods in the
respective classes2:

The Trademark Examining Attorney in each case refused
registration of applicant’s mark under Section 2(d) of the
Trademark Act of 1946, 15 U.S.C. §1052(d), on the ground that
applicant’s mark so resembles the registered mark shown below,
for goods identified as “books, printed journals and printed
newsletters, all in the field of self help, motivation and
holistic topics; blank cards; greeting cards; postcards;
posters; stickers; calendars; writing paper; notepaper; wedding

1 Serial No. 77493208, filed June 6, 2008, pursuant to Section 1(b) of
the Trademark Act, 15 U.S.C. §1051(b), alleging a bona fide intent to
use in commerce, and disclaiming the exclusive right to use “KIDS”
apart from the mark as shown.
2 Serial No. 77492885, filed June 6, 2008, pursuant to Section 1(b) of
the Trademark Act, 15 U.S.C. §1051(b), alleging a bona fide intent to
use in commerce, and disclaiming the exclusive right to use “KIDS”
apart from the mark as shown. The colors orange, yellow, blue and
black are claimed as a feature of the mark.
Serial No. 77564969
3
albums; scrapbook albums; photograph albums,” in International
Class 16, that when used on or in connection with applicant’s
goods, it is likely to cause confusion or mistake or to
deceive:3

Upon final refusal of registration in each case, applicant
filed a timely appeal. Both applicant and the examining
attorney filed briefs. Because we deem the cases to have common
questions of fact and of law, we have consolidated them. For
the reasons discussed herein, the Board affirms the refusal to
register as to the goods identified in International Class 16.
We base our determination under Section 2(d) on an analysis
of all of the probative evidence of record bearing on a
likelihood of confusion. In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); see also, In re

3Registration No. 3159638, issued October 17, 2006, based on first use
and first use in commerce on September 30, 2004. The refusal based on
this registration pertains to Class 16 only. The examining attorney
also refused registration as to Class 25 based on a different
registration, Registration No. 2272172. However, during the pendency
of this appeal, that registration was cancelled for failure to file a
Section 8 affidavit of continuing use. Accordingly, the refusal as to
Class 25 based on Registration No. 2272172 is moot and will be given
no further consideration.
Serial No. 77564969
4
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities or
dissimilarities between the marks and the similarities or
dissimilarities between the goods and/or services. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098,
192 USPQ 24, 29 (CCPA 1976) (“The 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”).
The Goods
There is clear overlap between at least two of the goods in
the cited registration with those in Class 16 of the
applications. The applications identify, among other goods,
“stationery and writing materials,” which would include
registrant’s “writing paper.” Also, applicant’s “notebooks”
would include or contain registrant’s “notepaper.” Accordingly,
these two groups of goods are legally identical.
Furthermore, the examining attorney submitted copies of
use-based, third-party registrations covering goods of the type
recited in Class 16 in both applications and the cited
registration. Use-based, third-party registrations may serve to
suggest that the goods are of a type which may emanate from a
single source. See In re Albert Trostel & Sons Co., 29 USPQ2d
Serial No. 77564969
5
1783, 1785 (TTAB 1993). The examining attorney also submitted
evidence from several third-party websites showing that both
types of products are offered for sale under the same marks, to
further emphasize this point.4
Accordingly, we find that the goods in the cited
registration are in-part legally identical to those in Class 16
in the applications and otherwise related, and we find that this
du Pont factor strongly favors finding a likelihood of
confusion.
The Channels of Trade and Classes of Purchasers
Because registrant’s goods and applicant’s Class 16 goods
as identified in the applications and the cited registration are
in-part legally identical, we presume that the respective goods
are or will be sold in the same trade channels and to the same
classes of purchasers. Brown Shoe Co. v. Robbins, 90 USPQ2d
1752 (TTAB 2009); Genesco Inc. v. Martz, 66 USPQ2d 1260 (TTAB
2003); In re Smith and Mehaffey, 31 USPQ2d 1531 (TTAB 1994).
That is to say, there is nothing to stop a consumer who seeks
registrant’s “writing paper” from encountering applicant’s
“stationery and writing materials” on the very same store

4 Applicant pointed out that several of the goods in the cited
registration are limited to “the field of self help, motivation and
holistic topics.” However, only three of the goods are so limited,
specifically the “books, printed journals and printed newsletters.”
Our finding of relatedness regards other goods in the class.
Serial No. 77564969
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shelves, online arenas, or elsewhere. Accordingly, we find that
these du Pont factors also weigh in favor of finding a
likelihood of confusion.
The Marks
We consider and compare the appearance, sound, connotation
and commercial impression of the marks in their entireties.
Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005).
We note that the more similar the goods at issue, the less
similar the marks need to be for the Board to find a likelihood
of confusion. Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992).
In comparing the marks, we are mindful that 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 so that confusion as to the source of the goods
offered under the respective marks is likely to result. San
Fernando Electric Mfg. Co. v. JFD Electronics Components Corp.,
565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc.
v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff'd
unpublished, No. 92-1086 (Fed. Cir. June 5, 1992). The proper
focus is on the recollection of the average customer, who
retains a general rather than specific impression of the marks.
Winnebago Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ
335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106, 108 (TTAB 1975).
Serial No. 77564969
7
The mark in application Serial No. 77493208 is RIPPLE KIDS
in standard character format, with the descriptive term “KIDS”
disclaimed. Descriptive matter is generally viewed as a less
dominant or significant feature of a mark. In re National Data
Corp., 753 F.2d 1956, 224 USPQ 749 (Fed. Cir. 1985) (“Regarding
descriptive terms, this court has noted that the ‘descriptive
component of a mark may be given little weight in reaching a
conclusion on the likelihood of confusion’”). Accordingly, we
consider “RIPPLE,” as the leading and nondescriptive word, to be
the dominant term in the mark.
The mark in Application Serial No. 77492885 is as follows:

Again, “KIDS” is disclaimed, rendering RIPPLE the dominant
term, which is further emphasized by a design that evokes
ripples circling outward. Likewise, the mark in the cited
registration contains the single word RIPPLE, with a similarly
simplistic design of a few ripples circling outward, as follows:
Serial No. 77564969
8

Accordingly, we deem the commercial impressions of the
designs of ripples, and in particular of outwardly circling
ripples to be highly similar.5
Overall, we find that, viewed in their entireties, the
similarities of the marks outweigh their differences.
Accordingly, we find this du Pont factor to also favor finding a
likelihood of confusion.
Consumer Sophistication and Existence of Third-Party Marks
Applicant submits that consumer sophistication should weigh
in its favor. However, applicant has submitted no evidence that
consumers of the goods at issue in the applications and the
cited registration would be sophisticated. Rather, these goods
would be purchased by ordinary consumers, and we note evidence
of record that “stationery,” as identified by the applications,
is offered for sale for less than two dollars. See
www.papyrus.com and www.finestationery.com. Inexpensive,
ordinary consumer items are likely to be purchased on impulse,
without a great deal of care, which increases the risk of

5 With regard to the standard character mark in Application Serial
No. 77492885, the analysis is that much more clear since
applicant’s mark may be presented in various styles, including
the font style used by registrant.
Serial No. 77564969
9
confusion. See Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d
1894 (Fed. Cir. 2000). This du Pont factor favors a finding of
likelihood of confusion.
Applicant also referred in its brief to “a number of third-
party registrations that contain the word ‘Ripple’ or 'Kids’
within a mark that offer similar goods” in this class. (Appl’s
brief at 13). However, applicant failed to substantiate that
argument with any evidence in the record.
We deem this du Pont factor to be neutral.
Actual Confusion
Applicant argues that the lack of actual confusion should
weigh in its favor. However, the lack of evidence of “actual
confusion” carries little weight, especially in an ex parte
context. In re Majestic Distilling Co., Inc., 315 F.3d 1311,
65 USPQ2d 1201, 1205 (Fed. Cir. 2003) This is particularly so
where, as here, applicant has an intent-to-use application and
there has not yet been an opportunity for confusion to occur.
We deem this du Pont factor to be neutral.

Conclusion
In summary, we have carefully considered all of the
evidence and arguments of record relevant to the du Pont
likelihood of confusion factors. We conclude that applicant and
registrant here have in-part identical, and otherwise related,
goods moving in the same channels of trade to the same
purchasers, and similar marks, both dominated by the commercial
impression of “RIPPLE”. Accordingly, on the balance, we find a
Serial No. 77564969
10
likelihood of confusion between applicant’s marks and
Registration No. 3159638 as to the goods in International Class
16 only.
Decision: The refusal to register is affirmed as to
International Class 16 in both applications. The applications
will proceed to publication as to Class 25.