Sports Source, Inc.

Trademark Trial and Appeal Board

Jul 20, 2004

No. 76351038 (T.T.A.B. Jul. 20, 2004)

Mailed: July 20, 2004
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Sports Source, Inc.
________
Serial No. 76351038
_______
Edward A. Sokolski for Sports Source, Inc.
Brett Tolpin, Trademark Examining Attorney, Law Office 115
(Tomas Vlcek, Managing Attorney).
_______
Before Simms, Seeherman and Quinn, Administrative Trademark
Judges.
Opinion by Seeherman, Administrative Trademark Judge:
Sports Source, Inc. has appealed from the final
refusal of the Trademark Examining Attorney to register SSI
SPORTS, with the word SPORTS disclaimed, as a trademark for
"backpacks, day packs, fanny packs, luggage, suitcases, and
beach umbrellas" in Class 18, "foldable beach chairs and
directors chairs" in Class 20, and "soft sided coolers,
hard sided coolers, lunch boxes and lunch pails" in Class
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 76351038
2
21.1 Registration has been refused pursuant to Section 2(d)
of the Trademark Act, 15 U.S.C. 1052(d), on the ground that
applicant's mark so resembles the mark SSI, previously
registered for "air beds",2 that, if applied to the
identified goods, it is likely to cause confusion or
mistake or to deceive.
Applicant and the Examining Attorney have filed appeal
briefs; applicant did not request an oral hearing.
Before turning to the substantive issue on appeal, we
must address an objection by the Examining Attorney. The
Examining Attorney objects to our consideration of lists of
registrations and application abstracts which were obtained
from the USPTO's TESS database, and which applicant
submitted during the course of prosecution of the
application. The lists consist of the mark, the serial
number and, if registered, the registration number, and
whether the application or registration is "live" or
"dead." The Examining Attorney contends that these third-
party registrations were not properly made of record
because applicant did not submit copies of the
registrations. The Examining Attorney is correct that,
1 Application Serial No. 76351038, filed December 21, 2001, and
asserting a bona fide intention to use the mark in commerce.
2 Registration No. 1051886, issued November 2, 1976; Section 8
and 15 affidavits accepted and acknowledged; renewed.
Ser No. 76351038
3
normally, a list of registrations is insufficient to make
them of record. See In re Duofold Inc., 184 USPQ 638 (TTAB
1974). However, in this case, as the present Examining
Attorney acknowledged, the previous Examining Attorney did
not object to applicant's submissions as being improper at
the time they were submitted, and at a point that applicant
could have cured the evidentiary problem.3 Accordingly, the
registrations/applications are deemed to be stipulated into
the record. See TBMP §1208.02. However, since the lists
do not provide any information about the goods or services
for which the marks are registered, their probative value
is very limited.
This brings us to the issue of likelihood of
confusion. Our determination of this issue is based on an
analysis of all of the probative facts in evidence that are
relevant to the factors set forth in In re E. I. du Pont de
Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973).
See also, In re Majestic Distilling Company, Inc., 315 F.3d
1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any likelihood
of confusion analysis, two key considerations are the
similarities between the marks and the similarities between
3 It is further noted that the present Examining Attorney, in
denying applicant's request for reconsideration, did not take the
opportunity to advise applicant of any problem with submitting a
mere list of registrations.
Ser No. 76351038
4
the goods and/or services. See Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA
1976). See also, In re Dixie Restaurants Inc., 105 F.3d
1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
The marks themselves are virtually identical.
Applicant has essentially taken the cited mark, SSI, and
added the descriptive word SPORTS to it. It is the
general rule that one may not appropriate the entire mark
of another and avoid a likelihood of confusion by the
addition thereto of descriptive or otherwise subordinate
matter. Bellbrook Dairies, Inc. v. Hawthorn-Mellody
Farms Dairy, Inc., 253 F.2d 431, 117 USPQ 213 (CCPA
1958). Although marks must be compared in their
entireties, there is nothing improper in stating that,
for rational reasons, more or less weight has been given
to a particular feature of a mark. See In re National
Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985).
In the present case, SSI is the dominant feature of
applicant's mark. Consumers may notice the word SPORTS,
but they will regard it as merely a descriptor of the
goods, and will view SSI as the origin-indicating portion
of applicant's mark.
Moreover, we do not agree with applicant's contention
that the registered mark is entitled to a very limited
Ser No. 76351038
5
scope of protection. Applicant relies on a listing taken
from the USPTO's TESS database showing that there are 140
applications or registrations for SSI marks. Third-party
registrations are not evidence of use of the marks shown
therein. Thus, we cannot say that the public is so
familiar with SSI marks that they will assume that
related goods sold under the mark SSI emanate from
separate sources. Third-party registrations can, of
course, be used to show that a term has a certain
significance in a particular industry, and therefore that
the term is not entitled to a broad scope of protection.
However, the listing provided by applicant does not show
this, either. Almost half of the list is for
applications, not registrations. Applications show only
that a particular mark has been applied for; they do not
show, as registrations do, that a term has a particular
significance within an industry. More importantly, the
list of "live" third-party registrations does not contain
any information as to the goods or services, or even
classes, for which the marks are registered. Thus,
applicant has produced no evidence that SSI has a
particular meaning or significance for goods such as
those of the cited registrant's.4
4 It is likely that the SSI marks refer to the names of the
Ser No. 76351038
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We turn next to a consideration of the goods. As has
been often stated, it is not necessary that the goods of
the parties be similar or competitive, or even that they
move in the same channels of trade to support a holding
of likelihood of confusion. It is sufficient that the
respective goods of the parties are related in some
manner, and/or that the conditions and activities
surrounding the marketing of the goods are such that they
would or could be encountered by the same persons under
circumstances that could, because of the similarity of
the marks, give rise to the mistaken belief that they
originate from the same producer. In re International
Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB
1978). Moreover, the greater the degree of similarity
between the applicant's mark and the cited registered
mark, the lesser the degree of similarity between the
applicant's goods or services and the registrant's goods
or services that is required to support a finding of
likelihood of confusion. In re Opus One Inc., 60 USPQ2d
1812 (TTAB 2001).
various registrants, rather than suggesting a characteristic of
the goods or services for which they are registered. In this
connection, we note that applicant's name is "Sports Source,
Inc." and the cited registrant's name is "Support Systems
International, Inc."
Ser No. 76351038
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In order to demonstrate the requisite relatedness of
the goods, the Examining Attorney has made of record a
number of third-party registrations. Third-party
registrations which individually cover a number of
different items and which are based on use in commerce
serve to suggest that the listed goods and/or services
are of a type which may emanate from a single source.
See In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB
1993).
Several comments must be made about the registrations
submitted by the Examining Attorney. First, the
Examining Attorney states that an X-Search search summary
"identifies two-hundred and ten (210) registrations or
applications covering air mattresses or air beds and
chairs, forty (40) registrations or applications covering
air mattresses or air beds and coolers, fifty-seven (57)
registrations or applications covering air mattresses or
air beds and backpacks, seventy-three (73) registrations
or applications covering air mattresses or air beds and
umbrellas, and sixty-seven (67) registrations or
applications covering air mattresses or air beds and
luggage." Brief, unnumbered pages 6-7. The Examining
Attorney further states that he made of record a
representative sampling. However, as noted previously,
Ser No. 76351038
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applications have no value in demonstrating that goods
are related. Further, it appears from the search summary
that the Examining Attorney did not view most of the
documents (e.g., only 10 of the 73
applications/registrations for air beds or air mattresses
and umbrellas). We cannot say, from this relatively
minor number of applications/registrations viewed, that
the registrations that were submitted were a
representative sample. Second, we note that several of
the registrations were based on Section 44 of the Act,
rather than on use (see, e.g., Registration No. 2434502),
and some of the registrations were obviously for an array
of goods for which the mark was either the selling point,
or was a house mark. See, for example, Registration No.
2090283 for SPACE CENTER HOUSTON, registered for goods
and services in 16 classes, and Registration No. 2754820
(submitted as Application Serial No. 75980145), owned by
Lifeguard Licensing Corp. and registered for goods
ranging from carpet shampoo to lingerie to trampolines to
soda water. Moreover, some of the registrations,
although highlighted because they presumably list the
goods in the subject application and cited registration,
in fact do not. For example, Reg. No. 2694672 has the
word "umbrella" highlighted, as well as "air mattresses."
Ser No. 76351038
9
However, the actual item is not umbrellas, but "umbrella
stands." Thus, we do not consider the total number
listed by the search summary of all of the applications
and registrations retrieved by the search to show that
the various goods have been registered under a single
mark, and we have considered only those registrations
which were submitted, and have accorded probative value
only to those registrations which are based on use in
commerce, and are not in the nature of licensing
properties or house marks.
There is another point we must address with respect
to the third-party registrations. The cited registration
is for goods identified as "air beds." There are
relatively few third-party registrations which have this
specific item in their identifications. However, there
are many third-party registrations which have been made
of record that list "air mattresses." The Examining
Attorney has also submitted evidence taken from the
Internet which indicates that the term "air beds"
encompasses air mattresses, or that "air beds" are used
as an alternative term for "air mattress."5 For example,
5 It appears that "air bed" can have many meanings, ranging from
an inflatable bed with an inflatable mattress, base, headboard
and footboard, see www.bubblefunfurniture.com, to a "real"
mattress with quilting which has adjustable firmness to customize
one's sleeping area, see www.bsleep.com.
Ser No. 76351038
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on the WalMart website, under the heading "Air
Mattresses," there are listed the "Ozark Elevated Airbed"
and the "Ozark Trail Queen-Size Air Mattress with Frame."
www.walmart.com. The website for Quality Trading, Inc.,
www.portablebeds.com, advertises "Inflatable beds and
mattresses featuring the next generation of inflatable
air beds..." and treats these products as a single
category, using the heading "Inflatable Air Beds and
Mattresses" and listing, for example, "Serta Air Sleep
Inflatable Mattresses and Intex Rising Comfort Airbed."
In view of this evidence, we consider the third-party
registrations which list "air mattresses" probative of
relatedness of "air beds" with the various other goods
listed in the registrations.
With respect to the goods listed in applicant's class
20, the third-party registrations show that such goods,
as well as air mattresses or air beds, may be sold under
a single mark. See, for example, Reg. No. 1221753 for
"air mattresses and folding chairs"; Reg. No. 2188376
for, inter alia, "air mattresses, folding tables, chairs
and benches"; Reg. No. 2138996 for "collapsible tables
and chairs for camping, and inflatable air mattress for
use when camping"; and Reg. No. 2602031 for, inter alia,
Ser No. 76351038
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"furniture for camping, namely, folding tables, folding
cots, folding chairs and air beds."
In view of the relatedness of the goods demonstrated
by the third-party registrations, and the similarity of
the marks, we find that confusion is likely with respect
to applicant's Class 20 goods. We are not persuaded by
applicant's argument that air beds would be bought with
care because of their relative expense and because
consumers would be concerned about their comfort. As we
have already stated, although some air beds are used in
the same manner as a regular bed, others are the same as
air mattresses and, as shown by the Internet evidence
made of record by the Examining Attorney, are advertised
as costing as little as $7.95 for an "Intex Junior
Inflatable Air Bed" and $8.95 for "Intex Manual Inflate
Inflatable Air Beds" and "Intex Classic Vinyl Inflatable
Air Beds" (www.portablebeds.com). As for applicant's
argument that there is no evidence of any actual
confusion, applicant's application is based on an
asserted intention to use the mark. Since apparently
applicant has not yet commenced use of its mark, the
absence of actual confusion is not surprising. Even if
applicant were to have begun using its mark, there is no
information in this record that would allow us to
Ser No. 76351038
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conclude that there has been a sufficient opportunity for
confusion to have occurred, such that we could conclude
from the absence of actual confusion that confusion is
not likely to occur.
Accordingly, we affirm the refusal of registration
with respect to Class 20.
For the Class 18 goods, there is only one third-party
registration that covers both air mattresses and goods
such as those identified in applicant's application,
i.e., Reg. No. 2160167 for a mountain design trademark
for, inter alia, umbrellas and backpacks, and air
mattresses for use when camping.6 A single registration
is not sufficient to demonstrate that goods such as
backpacks, luggage and beach umbrellas and air beds would
emanate from a single source and be sold under a single
mark. The Examining Attorney has also submitted, in
order to show the relatedness of the goods, excerpts
taken from various websites that purportedly show that
goods such as the applicant's Class 18 goods and air
mattresses are sold by the same Internet "stores." Two
6 There are two other third-party registrations which also list
such goods, but because they cover a wide range of products and
appear to be more in the nature of licensed or house marks (for
example, Reg. No. 1451756 for COCA COLA for goods in 10 classes,
and ranging from magnetic memo holders to pins made of precious
metal to die cast metal vehicles) we do not, as we said above,
find them probative of the relatedness of the goods.
Ser No. 76351038
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of the excerpts, although taken from different websites,
www.campingrus.net and http://shop.store.yahoo.com, are
actually from the same entity, Camping Station.com.7
This site lists, in a column at the left, a variety of
categories. For example, there are "Air Beds &
Mattresses," "Back Packs & Bags," "Chairs & Cots," and
"Coolers & Canteen's" [sic], as well as, inter alia,
"Digital Camera's" [sic], "Furniture," "GPS Systems &
Compasses," "Hunting & Paintball Equipment," "Shoe care"
and "Zippo Lighters." Featured on one page are "Roof Top
Luggage" and a "Chair Pack," while another page features
a variety of umbrellas, including "traveler pocket-size
umbrella," "telescopic umbrellas," and "golf umbrellas."
We note that none of the umbrellas is characterized as a
"beach umbrella," the item listed in applicant's
application.
There are also excerpts from two other websites, for
Dunham's Sports (www.dunhamssports.com) and Modell's
(www.modells.com). Each of these excerpts lists
categories of goods. The Dunham's Sports list includes
2-Way Radios, Air Beds, Batteries, Daypacks, GPS
Instructional Videos, Golf Umbrellas, Secure Digital
7 The Yahoo website appears to be merely a link to the Camping
Station.com website.
Ser No. 76351038
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Cards, Umbrellas, Wallets and Water Treatment/Filtration.
Modell's also lists a variety of categories, including
most of the ones in the Dunham's Sports excerpt.
However, the Modell's webpage features only luggage
products, specifically a Columbia Windpass wheeled
backpack, a Jansport wheeled laptop backpack, an Eagle
Creek transit tote, and an Eagle Creek "spare pocket,"
which appears to be a unisex purse. The Dunham's Sports'
excerpt shows a Columbia Windpass wheeled backpack, a
Columbia security belt, a Jansport wheeled laptop
backpack and a Camp Inn Cordura Cargo Bag.
In other words, none of the website excerpts shows
that products such as applicant's and air mattresses or
air beds are promoted together. Nor does the fact that
the websites list categories for goods such as
applicant's and the registrant's demonstrate the degree
of relatedness necessary to support a finding of
likelihood of confusion. Internet companies sell many
different types of items. We have often held that simply
because goods are sold under the same roof does not make
them related. Internet evidence of the type submitted
herein has even less probative value. As opposed to a
bricks and mortar store where, because of the proximity
of items, customers would encounter one type of good
Ser No. 76351038
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while shopping for another, customers doing Internet
shopping will click directly on the item in which they
are interested.
Accordingly, we find that, because the evidence
adduced herein does not demonstrate the necessary
relatedness between the goods, we reverse the refusal of
registration with respect to Class 18.
When we consider air beds and the coolers, lunch boxes
and lunch pails in Class 21, we also find that the Office
has failed to demonstrate that these goods are sufficiently
related to prove that confusion is likely. It should be
noted that in the first and final Office actions the
Examining Attorney did not even mention a likelihood of
confusion with respect to applicant's Class 21 goods. In
the first Office action he stated that "the enclosed
evidence indicates that the applicant's chairs, umbrellas
and backpacks are closely related to the registrant's air
beds. Therefore, the proposed mark is likely to cause
confusion when used on or in conjunction with the
applicant's goods." In the second (and final) Office
action, he again stated, "the previously enclosed U.S.
registrations show that the applicant's chairs, umbrellas,
and backpacks are closely related to the registrant's
airbeds." Again, no mention was made of applicant's Class
Ser No. 76351038
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21 goods. In his appeal brief, the present Examining
Attorney has made clear that the refusal of registration is
with respect to all three classes. However, his only
argument/evidence with respect to the relatedness of the
Class 21 goods and air beds is the reference to
Registration No. 21361442 [sic], which he states "covers
'air mattresses' and 'coolers.'" Brief, unnumbered p. 7.
In fact, Registration No. 2136142 for the mark
FARFROMWORKIN is not for goods, but identifies retail and
wholesale services and retail and wholesale mail order
services for a variety of services, which include, inter
alia, air mattresses for use when camping, coolers, and a
variety of other goods such as greeting cards, calendars,
life preservers, shirts and marine sails. A third-party
registration for store services selling a variety of goods
is not evidence that such goods are sold under a single
mark or emanate from a single source.8 Moreover, this
registration does not prove that goods of the type listed
therein move in the same channels of trade. As the
Examining Attorney has recognized, third-party
registrations are not evidence of use of the marks shown
8 As previously stated, we have not considered third-party
registrations in the nature of house marks as evidencing that all
the goods listed therein are related.
Ser No. 76351038
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therein. Thus, a registration for retail store services
which lists goods purportedly sold by the store is not
evidence that such goods travel in the same channels of
trade.
As noted in the Internet evidence discussed above, the
websites list coolers as a category for products, in the
same way that they list air beds and mattresses and a
variety of other items. However, as we have previously
stated, such evidence does not demonstrate that the goods
are sufficiently related for us to find that confusion is
likely.
The Examining Attorney asserts that applicant has
offered no evidence to support its contention that the
goods of the parties are not related and that they travel
in different trade channels. However, it is the Office's
burden to prove likelihood of confusion, not the
applicant's burden to prove that confusion is not likely.
In the case of the Class 18 and Class 21 goods, the Office
has not met that burden.
We do not mean to imply we would reach the same result
on a different record; it is simply that, on the evidence
of record herein, we find that the Office has not
demonstrated the requisite relatedness between the
Ser No. 76351038
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registrant's goods and applicant's goods in Classes 18 and
21.
Decision: The refusal of registration with respect to
Class 20 is affirmed. The refusals of registration with
respect to the application in Classes 18 and 21 are
reversed, and the mark will be published for opposition for
the goods in these classes.
Simms, Administrative Trademark Judge, concurring in
part and dissenting in part:
While I agree with the majority that confusion is
likely if applicant’s mark SSI SPORTS were used in
connection with foldable beach chairs and directors chairs
in Class 20, I also believe that applicant’s use of its
mark in connection with its Class 18 and 21 goods is also
likely to cause confusion with the registered mark SSI for
air beds.
In support of his refusal to register applicant’s mark
for backpacks, day packs, fanny packs, luggage, suitcases
and beach umbrellas, in Class 18, the Examining Attorney
made of record various third-party registrations in an
attempt to show that other companies make and sell goods
Ser No. 76351038
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similar to applicant’s and registrant’s.9 For example, the
Examining Attorney made of record Registration No.
2,160,167, issued May 26, 1998, for a mountain design
trademark for various camping-related goods including
backpacks and air mattresses. Also of record is
Registration No. 2,253,519, issued June 15, 1999, which
covers the retail distribution of sporting goods including
such as items as air beds and umbrellas. Internet evidence
including Web pages of camping and sports retailers also
shows that those sites offer for sale such merchandise as
backpacks, umbrellas and air beds. See, for example, the
Dunham’s Sports and Modell’s Web pages of record.
With respect to applicant’s Class 21 goods, such as
coolers, lunch boxes and lunch pails, the Examining
Attorney made of record Registration No. 2,136,142, issued
9 The evidence in support of the relationship of applicant’s
Class 20 goods (foldable beach chairs and directors chairs) to
registrant’s air beds includes such third-party registrations as
Registration No. 2,358,443, issued June 13, 2000, for the mark
OUTDOOR SPIRIT for folding chairs, air mattresses and air beds as
well as other camping and hunting merchandise; Registration No.
1,221,753, issued December 28, 1982, for the mark AMERICAN CAMPER
and design for folding chairs and air mattresses and other goods;
Registration No. 2,188,376, issued September 8, 1998, for the
mark OZARK TRAIL for chairs, air mattresses and various camping-
related equipment; Registration No. 2,138,996, issued February
24, 1998, for the mark STANSPORT for chairs for camping and air
mattresses as well as other goods; Registration No. 2,328,006,
issued March 14, 2000, for the mark LAKE ’N TRAIL for folding
camp chairs and air mattresses as well as other camping and
fishing-related merchandise; Registration No. 2,602,031, issued
July 30, 2002, for the mark NORTHCREST for folding chairs and air
beds as well as other camping-related goods.
Ser No. 76351038
20
February 10, 1998, for the mark FARFROMWORKIN for retail
and wholesale services and retail and wholesale mail order
services including the offering of various camping and
outdoors products including coolers and air mattresses as
well as clothing. The aforementioned Internet evidence
from the camping-related site shows the offering for sale
of coolers and air beds or air mattresses.
As the Examining Attorney has argued, and as the
majority has agreed, the dominant and origin-indicating
portion of applicant’s mark SSI SPORTS (SPORTS disclaimed)
is identical in sound, appearance and commercial impression
to the registered mark SSI. Because applicant’s evidence
fails to show use (or registration) of this initialism in
connection with closely related goods, we must presume that
the registered mark is not weak and has a distinctive
commercial impression. In fact, the majority has stated
that the registered mark is entitled to a “broad scope of
protection.”
Further, where the marks are nearly identical (SSI and
SSI SPORTS), this fact “weighs heavily against applicant.”
In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565,
223 USPQ 1289, 1290 (Fed. Cir. 1984). Indeed, the fact
that an applicant has selected a nearly identical mark to
registrant’s “weighs [so] heavily against the applicant
Ser No. 76351038
21
that applicant’s proposed use of the mark on “goods...
[which] are not competitive or intrinsically related [to
registrant’s goods]...can [still] lead to the assumption
that there is a common source.” In re Shell Oil Co., 992
F.2d 1204, 26 USPQ2d 1687, 1688-1689 (Fed. Cir. 1993).
“The greater the similarity in the marks, the lesser the
similarity required in the goods or services of the parties
to support a finding of likelihood of confusion.” 3 J.
McCarthy, McCarthy on Trademarks and Unfair Competition,
§23:20.1 (4th ed. 2001).
Moreover, goods need not be identical or directly
competitive in order for there to be a likelihood of
confusion, it being sufficient instead that the goods are
related in some manner or that the circumstances
surrounding their marketing are such that they would likely
be encountered by the same persons under circumstances that
could give rise to the mistaken belief that they emanate
from or are associated with the same source. See In re
Peebles Inc., 23 USPQ2d 1795 (TTAB 1992); Chemical New York
Corp. v. Conmar Form Systems Inc., 1 USPQ2d 1139 (TTAB
1986); and In re International Telephone and Telegraph
Corporation, 197 USPQ 910 (TTAB 1978). As our primary
reviewing Court stated in Recot Inc. v. M.C. Becton, 214
F.3d 1332, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000): “Even if
Ser No. 76351038
22
the goods in question are different from, and thus not
related to, one another in kind, the same goods can be
related in the mind of the consuming public as to the
origin of the goods. It is this sense of relatedness that
matters in the likelihood of confusion analysis.” The same
Court reiterated in the case of Hewlett-Packard Company v.
Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004
(Fed. Cir. 2002): “Even if the goods and services in
question are not identical, the consuming public may
perceive them as related enough to cause confusion about
the source or origin of the goods and services.”
There are no restrictions in the identification of
goods in registrant’s registration and we do not read
limitations into that identification of goods. Squirtco v.
Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir.
1983) (“There is no specific limitation and nothing in the
inherent nature of Squirtco’s mark or goods that restricts
the usage of SQUIRT for balloons to promotion of soft
drinks. The Board, thus, improperly read limitations into
the registration”). See also Schieffelin & Co. v. Molson
Companies Ltd., 9 USPQ2d 2069, 2073 (TTAB 1989)
(“[M]oreover, since there are no restrictions with respect
to channels of trade in either applicant's application or
opposer's registrations, we must assume that the respective
Ser No. 76351038
23
products travel in all normal channels of trade for those
alcoholic beverages”). Registrant’s air beds or air
mattresses could well be sold in outdoors or camping or
sporting goods stores, the same stores which are likely to
sell applicant’s backpacks, beach umbrellas, chairs and
coolers.
It is also well established that a refusal under
Section 2(d) is proper if there is a likelihood of confusion
involving any of the goods set forth in the application, and
that, where a likelihood of confusion is so found, it is
unnecessary to rule with respect to any of the other goods
listed in that class of goods. See, e.g., Tuxedo Monopoly,
Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ
986, 988 (CCPA 1981); and Shunk Mfg. Co. v. Tarrant Mfg.
Co., 318 F.2d 328, 137 USPQ 881, 883 (CCPA 1963).
Therefore, for example, if we find a likelihood of confusion
with applicant’s mark for backpacks, we need not consider
applicant’s mark for other goods in that class, such as
suitcases and luggage.
While applicant has argued that registrant’s air beds
are found in bedding and furniture stores as well as
department stores, applicant has submitted no evidence in
support of this contention. And applicant has simply
argued that the fact that a company may make items similar
to registrant’s air beds and applicant’s backpacks, folding
Ser No. 76351038
24
chairs, umbrellas and coolers does not mean that those
goods are marketed through the same channels of trade.
Applicant has offered no evidence that registrant’s air
beds or air mattresses travel in different channels of
trade from applicant’s goods. We do have evidence from the
Examining Attorney, however, that such goods are made by
entities that make other camping-, outdoors- and sports-
related merchandise, and are offered for sale online by
camping and sports-related companies. In addition,
consumers are very likely to encounter these types of goods
in camping, outdoors and sporting goods stores. Applicant
has also offered no evidence in support of its contention
that registrant’s air beds are “relatively expensive” and
would be purchased by highly sophisticated and careful
purchasers. The evidence of record, including depictions
and listings of air mattresses and air beds (noted by the
majority) tend to indicate, to the contrary, that these
goods are not expensive, and applicant has admitted that
its own goods are relatively inexpensive. Brief, 3.
It is my belief that an ordinary purchaser, aware of
SSI air beds presumptively sold in all normal channels of
trade for such goods, including camping, outdoors and
sporting goods stores, as well as those sections of
department stores, who then encounter applicant’s SSI
Ser No. 76351038
25
SPORTS backpacks, umbrellas, foldable beach chairs and
coolers, are likely to believe that all of these goods are
produced or sponsored by the same entity. The Examining
Attorney has shown, in my opinion, that a sufficient
relationship exists between registrant’s goods and at least
these goods of applicant. Furthermore, as noted above,
because registrant’s air beds and applicant’s products are
relatively inexpensive, purchasers may not spend a great
deal of time in the purchasing decision, a factor which
favors registrant in the likelihood of confusion analysis.
Of course, if there is any doubt concerning the conclusion
of likelihood of confusion, such doubt, in accordance with
precedent, must be resolved in favor of the registrant,
whose registration has been on the books for almost 28
years. See, e.g., In re Hyper Shoppes (Ohio) Inc., 837
F.2d 840, 6 USPQ2d 1025, 1026 (Fed. Cir. 1988); In re
Martin's Famous Pastry Shoppe, Inc., supra; and In re
Pneumatiques Caoutchouc Manufacture et Plastiques Kleber-
Columbes, 487 F.2d 918, 179 USPQ 729 (CCPA 1973).