Smokey Contraband, LLC

Trademark Trial and Appeal Board

Oct 15, 2019

87645035 (T.T.A.B. Oct. 15, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: October 15, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Smokey Contraband, LLC
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Serial No. 87645035
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Jeffrey J. Schwartz of Schwartz Law Firm, P.C. for
Smokey Contraband, LLC.
Sagar Vengurlekar, Trademark Examining Attorney, Law Office 117,
Hellen Bryan-Johnson, Managing Attorney.
_____

Before Bergsman, Wellington, and Goodman,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
Smokey Contraband, LLC (“Applicant”) seeks registration of the standard
character mark SMOKEY CONTRABAND on the Principal Register for the
following goods and services:1
Clothing, namely, shirts, t-shirts, sweatshirts, hooded sweatshirts,
sweatpants, hats and beanies, in International Class 25; and

1 Application Serial No. 87645035 was filed on October 13, 2017, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), alleging a date of first use anywhere and in commerce
for both classes of goods and services on October 13, 2017.
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Online retail store services featuring clothing, cigarette rolling paper and
paper rollers, lighters for smokers, smoker's rolling trays, grinders, and
ashtrays, in International Class 35.

The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the following two
registrations:
CONTRABAND (Reg. No. 2369125, hereinafter “Reg. ’125”), in standard
characters, on the Principal Register for goods that include “clothing, namely,
T-shirts, sweatshirts, long and short sleeved collared shirts, hats, jackets, long
and short legged pants, belts, namely, clothing and money belts” in
International Class 25;2 and

CONTRABAND (Reg. No. 3613543, hereinafter “Reg. ’543”), in standard
characters, on the Principal Register for goods that are now identified as “cigars;
tobacco cigars” in International Class 3.3

The Examining Attorney also takes the position that the term SMOKEY is merely
descriptive of services and, under Section 6(a) of the Trademark Act, 15 U.S.C. §
1056(a) (“Section 6(a)”), registration must be refused absent a disclaimer of the
exclusive right to use SMOKEY.
After the refusal was made final, Applicant filed an appeal. The appeal is briefed.
For the following reasons, we reverse the refusal based on a requirement for a
disclaimer of SMOKEY. However, we affirm the likelihood of confusion refusal as to
both classes based on Reg. ’125.

2 Registration No. 2369125 issued on July 18, 2000 to David Ross; renewed.
3 Registration No. 3613543 issued on April 28, 2009 to Nicaragua Tobacco Imports, Inc.;
renewed. The registration originally covered the following additional goods -- “Cigar bands;
cigar boxes; cigar boxes not of precious metal; cigar cases; cigar cutters; cigar humidifiers;
cigar lighters; cigar tubes; cigarettes; humidors; tobacco tins.” However, those goods were
deleted from the registration in a post-registration amendment filed on May 20, 2019.
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I. Disclaimer Requirement
We first address the refusal based on the requirement for a disclaimer of the
exclusive right to use SMOKEY apart from the mark.
Under Section 6(a), the USPTO “may require the applicant to disclaim an
unregistrable component of a mark otherwise registrable,” such as a component
which is merely descriptive under Section 2(e)(1), and failure to comply with the
requirement is a basis for refusing registration of the entire mark. In re Slokevage,
441 F.3d 957, 78 USPQ2d 1395, 1399-1400 (Fed. Cir. 2006); In re Stereotaxis, Inc.,
429 F.3d 1039, 77 USPQ2d 1087, 1089 (Fed. Cir. 2005).
A term is “merely descriptive” within the meaning of § 2(e)(1) “if it immediately
conveys information concerning a feature, quality, or characteristic of the goods or
services for which registration is sought.” In re N.C. Lottery, 866 F.3d 1363, 123
USPQ2d 1707, 1709 (Fed. Cir. 2017) (citing In re Bayer AG, 488 F.3d 960, 82 USPQ2d
1828, 1831 (Fed. Cir. 2007)). A term “need not immediately convey an idea of each
and every specific feature of the goods [or services] in order to be considered merely
descriptive; it is enough if it describes one significant attribute, function or property
of the goods [or services].” In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1513
(TTAB 2016) (citing In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1010 (Fed. Cir.
1987)).
The Examining Attorney argues that the term SMOKEY is an alternative spelling
of the word “smoky” and “[w]hen used, the goods featured in applicant’s retail store
services are filled with smoke and/or emit smoke. Thus, the wording merely describes
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key characteristics of the products featured in applicant’s retail store services.”4 In
support, the Examining Attorney submitted evidence showing that SMOKEY is a
recognized alternative spelling of the word “smoky,” which is defined as “giving off
smoke, esp. excessive smoke … like, of, or as of smoke … filled with smoke.”5
Applicant, on the other hand, argues that SMOKEY, spelled with the letter “e,”
has a different meaning and connotation that is “not interchangeable” with the
adjectival word “smoky.”6 Rather, Applicant asserts that SMOKEY “is a proper noun
in the case of . . . Smokey the Bear” and has become slang for a police officer.7 In
support, Applicant submitted information showing that the term SMOKEY is defined
as a “slang” term for “an officer or officers of a state highway patrol,” and may be used
as a proper noun “in the case of Smokey Bear or Smokey the Bear, a long-running
advertising mascot for the U.S. Forest Service.”8 Applicant also asserts that its mark
is “unitary because the combined words are so integrated or merged together into a
single memorable concept that they cannot be regarded as separable.”9
Even assuming, in arguendo, we find that SMOKEY, as used in Applicant’s mark
and in connection with services described in the application, would be understood by
consumers as merely an alternative spelling of the adjective “smoky,” we do not find

4 6 TTABVUE 12.
5 Definitions attached to October 24, 2018, Office Action, TSDR 2-17.
6 4 TTABVUE 8.
7 Id. at 9.
8 Definition and information regarding origin of the term “Smokey,” attached to Applicant’s
response filed October 3, 2018, TSDR 2-7.
9 Id.
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this term is merely descriptive of Applicant’s Class 35 services. The Board has long
held that if the viewer must exercise effort, thought, or imagination or follow a
multistage reasoning process in order to determine what characteristics the term
identifies, the term is suggestive rather than merely descriptive. In re Tennis in the
Round, Inc., 199 USPQ 496, 497 (TTAB 1978); see also, In re Shutts, 217 USPQ 363,
364-365 (TTAB 1983); In re Universal Water Systems, Inc., 209 USPQ 165, 166 (TTAB
1980). A term is only suggestive if it “requires imagination, thought and perception
to reach a conclusion as to the nature of the [services.]” DuoProSS Meditech Corp. v.
Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012).
Using the definition of this word (“giving off smoke, esp. excessive smoke … like,
of, or as of smoke … filled with smoke”), a consumer would have to undertake multiple
mental steps before the term “smoky” even begins to have some descriptive
significance in connection with Applicant’s services. Put differently, the descriptive
significance of “smoky” is several steps removed from Applicant’s services:
• Applicant’s online retail services cannot be described as “smoky.”

• Applicant’s services feature the sale of goods, i.e., lighters, ashtrays, cigarette
rolling paper, etc., that are clearly associated with products that emit smoke
but cannot themselves be described as “smoky.”

• “Smoky” perhaps describes the ability of certain goods, e.g., cigarettes, in that
they emit smoke and thus possibly create a “smoky” environment. Even so, we
point out that Applicant’s services only feature the sale of smoking accessories,
and not any product that actually emits smoke.

Ultimately, we find that SMOKEY is at most suggestive, but is not merely
descriptive because it does not immediately convey information concerning a feature,
quality, or characteristic of Applicant’s Class 35 services. In re N.C. Lottery, 123
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USPQ2d 1709. Accordingly, the requirement to disclaim this term, under Section
6(a), is reversed.
II. Likelihood of Confusion -- Applicable Law
When the question is likelihood of confusion, we analyze the facts as they relate
to the relevant factors set out in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563, 567 (CCPA 1973) (DuPont). See also In re Majestic Distilling Co., 315
F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each DuPont
factor for which there is evidence of record. See In re Guild Mortg. Co., 912 F.3d 1376,
129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019); M2 Software, Inc. v. M2 Commc’ns, Inc.,
450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA
Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered each
factor for which we have evidence, we focus our analysis on those factors we find to
be relevant.”). “[E]ach case must be decided on its own facts and the differences are
often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386,
387 (CCPA 1973); see also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d
1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont
factors for which there is record evidence but ‘may focus … on dispositive factors,
such as similarity of the marks and relatedness of the goods’”) (quoting Herbko Int’l,
Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
When analyzing these factors, the overriding concern is not only to prevent buyer
confusion as to the source of the goods or services, but also to protect the registrant
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from adverse commercial impact due to use of a similar mark by a newcomer. See In
re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993).
A. Identity of Goods; Relatedness of Goods and Services; Trade Channels
We compare the respective goods and services, as well their respective trade
channels, based on how they are identified in the application and cited registrations.
See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1161 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918
F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). See also, Hewlett-Packard Co. v.
Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002). Likelihood of
confusion “must be resolved on the basis of the goods [or services] named in the
registration and, in the absence of specific limitations in the registration, on the basis
of all normal and usual channels of trade and methods of distribution.” SquirtCo v.
Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983). We also point out
that it is sufficient for a refusal based on likelihood of confusion that relatedness is
established for any item encompassed by the identification of goods or recitation of
services in a particular class. Tuxedo Monopoly, Inc. v. General Mills Fun Grp., 648
F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re i.am.symbolic, llc, 116 USPQ2d
1409 (TTAB 2015), aff’d, 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017).
Because two different registrations, owned by different entities and covering
different goods, have been cited as bases for the likelihood of confusion refusal, we
address them individually.
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1. Applicant’s Goods and Services vis-à-vis the Goods in Reg. ’543
In comparing the “cigars; tobacco cigars” covered by Reg. ’543 with Applicant’s
Class 25 clothing goods, we find little relatedness between them other than that cigar
aficionados may seek to buy t-shirts or caps bearing the name of a cigar they like. The
Examining Attorney submitted printouts from a cigar retail website advertising
“diehard cigar lovers love to advertise their favorite brands with colorful cigar t-shirts
. . . eye-catching designs from the biggest names in the business.”10 However, this
type of evidence, as the website suggests, demonstrates only the consumer may want
to promote or express an affinity for cigar brand by having the cigar brand
emblazoned on a t-shirt and not that the consumer is accustomed to the sources of
the clothing and cigars being one and the same. Given the ubiquity of t-shirts (or
caps) bearing various brand names for nearly all types of goods and services, this type
of evidence, by itself, has very little probative value in showing a sufficient
relationship between cigars and clothing for there to be a likelihood of confusion.
With respect to Applicant’s Class 35 retail store services featuring cigarette and
smoking accessories, including lighters and ashtrays, there appears to be an inherent
relationship between these services and registrant’s cigars. That is, consumers of
cigars may seek to purchase goods, like lighters and ashtrays, from an online retail
source like Applicant.11 However, this apparent relationship is somewhat tangential

10 Printouts from Holt’s Cigar Company website (www.holts.com) attached to January 23,
2018, Office Action, TSDR 5-16.
11 In this regard, we note the Holts website also shows cigar accessories for sale, including
ashtrays. Id. at 10, 14.
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and there is little or no probative evidence before us demonstrating any closer
relationship between registrant’s cigars and Applicant’s services.
In sum, we do not find on this record a sufficient relationship between Applicant’s
Class 25 goods or its Class 35 services with registrant’s cigars, including their
established and likely-to-continue trade channels, to support a finding of a likelihood
of confusion based on Reg. ’543.12 Accordingly, we give no further consideration to
this registration as a basis for the likelihood of confusion refusal.
2. Applicant’s Goods and Services vis-à-vis the Goods in Reg. ’125
With respect to Applicant’s clothing goods in Class 25 and the clothing goods
identified in Reg. No. ’125, they are in-part identical inasmuch as they both
specifically include “t-shirts, sweatshirts, and hats.” They are also otherwise legally
identical because the registrant’s “long legged pants” and “hats” encompass,
respectively, Applicant’s “sweatpants” and “beanies.” See Sw. Mgmt., Inc. v.
Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015) (where goods or services are
broadly identified in an application or registration, “we must presume that the
services encompass all services of the type identified.”); In re Hughes Furniture
Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded
identification of ‘furniture’ necessarily encompasses Registrant’s narrowly identified
‘residential and commercial furniture.’”).

12 Because, on this record, we cannot find a sufficient relationship between the goods
(cigars) listed in Reg. ’543 with any of the services or goods listed in the application, the
likelihood of confusion refusal based on Reg. No. ’543 is reversed.
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Because the goods are in part or legally identical, we presume that the channels
of trade and classes of purchasers are the same. See In re Viterra Inc., 671 F.3d 1358,
101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (legally identical goods are presumed to
travel in same channels of trade to same class of purchasers); Genesco Inc. v. Martz,
66 USPQ2d 1260, 1268 (TTAB 2003) (“Given the in-part identical and in-part related
nature of the parties’ goods, and the lack of any restrictions in the identifications
thereof as to trade channels and purchasers, these clothing items could be offered and
sold to the same classes of purchasers through the same channels of trade.”); In re
Smith and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994) (“Because the goods are
legally identical, they must be presumed to travel in the same channels of trade, and
be sold to the same class of purchasers.”).
We also find Applicant’s Class 35 “online retail store services featuring clothing”
are closely related to the clothing goods listed in Reg. ’125. The Examining Attorney
submitted Internet printouts from retail websites showing these services and goods
offered together under the same mark or trade name.13 Registrant’s clothing is not
restricted to any particular trade channels and thus we must assume they will be
offered in all normal channels of trade for the goods, including an online retail store
featuring clothing, like Applicant’s. Moreover, Applicant’s services and registrant’s
apparel will reach the same class of consumers, namely anyone in the general public
seeking to purchase clothing online.

13 Printouts from Michael Kors website (www.michaelkors.com) and Calvin Klein website
(www.calvinklein.us) attached to October 24, 2018, Office Action, TSDR 35-41.
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In sum, the goods identified in the application and Reg. ’125 are identical, in part,
and we must presume that those identical goods are offered to the same classes of
purchasers in the same channels of trade. Accordingly, the second and third DuPont
factors strongly support the likelihood of confusion refusal determination based on
Reg. ’125 vis-à-vis Applicant’s Class 25 goods. Also, the second DuPont factor supports
a finding of a likelihood of confusion refusal determination based on this registration
vis-à-vis Applicant’s Class 35 services.
B. Similar Marks
Under the first DuPont factor, we compare the involved marks “in their entireties
as to appearance, sound, connotation and commercial impression.” Viterra, 101
USPQ2d at 1908 (quoting DuPont, 177 USPQ at 567); see also Palm Bay Imports, Inc.
v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1691 (Fed. Cir. 2005). “Similarity in any one of these elements may be sufficient
to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d
1742, 1746 (TTAB 2018) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)),
aff’d mem., (Fed. Cir. Sept. 13, 2019). Accord Krim-Ko Corp. v. Coca-Cola Bottling
Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity
in either form, spelling or sound alone is likely to cause confusion.”) (Citation
omitted).
Again, Applicant seeks to register SMOKEY CONTRABAND, and the registered
mark is CONTRABAND. While there is no rule that a likelihood of confusion is
present where one mark encompasses another, as in this case, marks have frequently
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been found to be similar under such circumstances. See, e.g., Wella Corp. v. Cal.
Concept Corp., 558 F.2d 1019, 194 USPQ 419, 422 (CCPA 1977) (finding
CALIFORNIA CONCEPT marks substantially similar to prior mark CONCEPT);
Coca-Cola Bottling Co. of Memphis, Tenn., Inc. v. Joseph E. Seagram and Sons, Inc.,
526 F.2d 556, 188 USPQ 105 (CCPA 1975) (applicant’s mark BENGAL LANCER for
club soda, quinine water and ginger ale is likely to cause confusion with BENGAL for
gin); In re S. Bend Toy Mfg. Co., 218 USPQ 479, 480 (TTAB 1983) (LIL’ LADY BUG
is similar to LITTLE LADY); TiVo Brands LLC v. Tivoli, LLC, 129 USPQ2d 1097,
1115 (TTAB 2019).
The marks clearly share aural and visual similarities inasmuch as they include
the term CONTRABAND. The addition of SMOKEY at the beginning of Applicant’s
mark is a point of difference.
The common element CONTRABAND also brings the marks closer in terms of
meaning or connotation. The term, defined as “illegal or prohibited traffic in goods,”14
has no significance in connection with any of the involved goods or services. While it
is very unlikely consumers will believe the goods or services are somehow illicit or
involve actual contraband, the term may engender a provocative or “edgy” image to
the involved goods and services of Applicant and registrant.

14 Definition taken from Merriam-Webster website (www.merriam-webster.com). The Board
may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet
Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983), including online dictionaries that exist in printed format or regular fixed editions. In
re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
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We would be remiss if we did not point out that there is no evidence demonstrating
weakness in the term CONTRABAND in connection with any of the involved goods
or services. Moreover, an arbitrary mark is considered to be an inherently strong
mark. See In re Opus One Inc., 60 USPQ2d 1812, 1813-14 (TTAB 2001) (arbitrary
mark is considered strong and entitled to a “broad scope of protection”).
The term SMOKEY in Applicant’s mark does not diminish the similarity between
the marks based on the common element CONTRABAND. Rather, viewing
Applicant’s mark in its entirety, consumers will likely understand SMOKEY as
modifying CONTRABAND and, at least in the context of Applicant’s online retail
store services, will likely perceive it as suggestive of the types of goods being sold, i.e.,
cigarette-related and smoking accessories. Consumers may also perceive SMOKEY
CONTRABAND as a new line or variation of the CONTRABAND clothing with which
they are familiar.
Applicant dedicates almost the entirety of its appeal brief to argument regarding
why it believes SMOKEY CONTRABAND mark is not confusingly similar to the cited
CONTRABAND mark. In particular, Applicant asserts that SMOKEY, as the first
term in its mark, dominates the mark and is more likely to be impressed upon
consumers.15 As discussed supra, Applicant posits this term will be understood as
slang for a police officer and, when combined with CONTRABAND, “creates an
interesting and memorable juxtaposition of words; that of associating law

15 4 TTABVUE 6.
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enforcement and illegal goods.”16 Indeed, Applicant asserts that its mark is “unitary
because the combined words are so integrated or merged together into a single
memorable concept that they cannot be regarded as separable,” citing In re EBS Data
Processing, 212 USPQ 964, 966 (TTAB 1981) (affirming disclaimer requirement of
separable element POCKET PROFILE from the composite mark PHACTS POCKET
PROFILE); and In re Kraft, Inc., 218 USPQ 571, 573 (TTAB 1983) (finding LIGHT N’
LIVELY a unitary expression and thus reversing the disclaimer requirement for an
otherwise merely descriptive term LIGHT).
We have carefully considered Applicant’s arguments, but remain unconvinced
that SMOKEY CONTRABAND creates a sufficiently distinct and different
commercial impression to distinguish it from the registered mark, CONTRABAND.
Even if consumers understand the term SMOKEY in Applicant’s mark as the slang
reference for a police officer, we do not view the entire mark as unitary or a
“juxtaposition.” Indeed, SMOKEY CONTRABAND still conjures illicit merchandise.
The EBS Data Processing and Kraft decisions cited by Applicant do not persuade us
otherwise because those decisions involved determinations as to whether a term was
unitary for purposes of overcoming a disclaimer requirement of a merely descriptive
term. The Board also identified specific reasons as to why particular wording was
deemed “unitary” -- for example, in Kraft, the Board pointed to “the expression
[LIGHT N’ LIVELY] as a whole has an alliterative lilting cadence which encourages
persons encountering it to perceive it as a whole.” In re Kraft, Inc., 218 USPQ at 573.

16 Id. at 8.
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Ultimately, given their overall resemblance in sound, appearance, connotation
and commercial impression, we find SMOKEY CONTRABAND and CONTRABAND
to be more similar than not. This factor therefore weighs in favor of a likelihood of
confusion.
Accordingly, this DuPont factor weighs in favor of finding a likelihood of confusion.
C. Conclusion - Refusal Affirmed Based on Reg. ’125
Given that the goods, as identified in the application and cited Reg. ’125 are in-
part identical, said goods will be offered to the same classes of purchasers in the same
trade channels, and Applicant’s mark, SMOKEY CONTRABAND, is similar overall
to the registered mark, CONTRABAND, we find that confusion is likely as to
Applicant’s Class 25 goods.
Based on our finding of relatedness between Applicant’s online retail services
featuring clothing and the listed items of apparel in in Reg. ’125, and that registrant’s
apparel may be offered in trade channels like online retail stores featuring clothing,
we further find that confusion is likely as to Applicant’s Class 35 services.
Accordingly, we affirm the likelihood of confusion refusal based on Reg. ’125 with
respect to Applicant’s goods and services in Classes 25 and 35.
Decision: The refusal based on a requirement for a disclaimer of SMOKEY is
reversed.
The refusal under Section 2(d) to register Applicant’s mark is affirmed as to the
goods and services in Classes 25 and 35.