SuperDraft, Inc.

Trademark Trial and Appeal Board

Aug 14, 2020

88255895 (T.T.A.B. Aug. 14, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: August 14, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re SuperDraft, Inc.
_____

Serial No. 88255895
_____

Nathan T. Harris of Lando & Anastasi, LLP for SuperDraft, Inc.

David I, Trademark Examining Attorney, Law Office 114,
Laurie Kaufman, Managing Attorney.
_____

Before Cataldo, Adlin, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
SuperDraft, Inc. (“Applicant”) seeks registration on the Principal Register of the
mark shown below for goods ultimately identified as “Apparel, namely, shirts, hats,
sweatshirts, and jerseys,” in International Class 25:
1

1 Application Serial No. 88255895 was filed on January 9, 2019 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intention
to use the mark in commerce. The application originally covered goods in Classes 9, 21, and
Serial No. 88255895
- 2 -
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that it
so resembles the registered mark shown below

for “clothing, namely t-shirts,”2 as to be likely, when used in connection with the goods
identified in the application, to cause confusion, to cause mistake, or to deceive.
Applicant appealed when the Examining Attorney made the refusal final.
Applicant and the Examining Attorney have filed briefs.3 We reverse the refusal to
register.

25, and services in Class 41, but Applicant divided the application during prosecution. Only
the original “parent” application containing the Class 25 goods is before us on appeal.
Applicant describes its mark as consisting of the “white lettering ‘SD’ inside of a black shield
with aqua trim to the left of the wording SUPER in black letters above the word DRAFT in
aqua.” The colors aqua, black, and white are claimed as features of the mark.
2 The cited Registration No. 4921467 issued on March 22, 2016. Color is not claimed as a
feature of the mark.
3 Citations in this opinion to the briefs refer to TTABVUE, the Board’s online docketing
system. Turdin v. Tribolite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the
number preceding TTABVUE corresponds to the docket entry number, and any numbers
following TTABVUE refer to the page number(s) of the docket entry where the cited materials
appear.
Serial No. 88255895
- 3 -
I. Record on Appeal4
The record on appeal consists of USPTO electronic records regarding the cited
registration,5 and dictionary definitions of the words “super” and “draft.”6
II. Analysis of Likelihood of Confusion Refusal
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of likelihood of confusion under Section 2(d) is based on
an analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973) (“DuPont”). We consider each DuPont factor for which
there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129
USPQ2d 1160, 1162-63 (Fed. Cir. 2019).
Two key DuPont factors in every Section 2(d) case are the first two factors
regarding the similarity or dissimilarity of the marks and the goods or services,
because 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.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ

4 Citations in this opinion to the application record are to pages in the Trademark Status &
Document Retrieval (“TSDR”) database of the United States Patent and Trademark Office
(“USPTO”).
5 March 26, 2019 Office Action at TSDR 17-19.
6 Id. at TSDR 2-16.
Serial No. 88255895
- 4 -
24, 29 (CCPA 1976). Applicant focuses solely on the similarity or dissimilarity of the
marks, which it argues “is a dispositive DuPont factor.” 4 TTABVUE 5.
A. Similarity or Dissimilarity of the Goods and Channels of Trade
The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration,’” while the third
DuPont factor considers “the similarity or dissimilarity of established, likely-to-
continue trade channels.” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047,
1051 (Fed. Cir. 2018) (quoting DuPont, 177 USPQ at 567). See also Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-63 (Fed.
Cir. 2014). The Examining Attorney need not prove, and we need not find, similarity
between each good identified in the application and the goods identified in the cited
registration. It is sufficient if one of the goods identified in the application is similar
to the goods identified in the cited registration. See, e.g., Tuxedo Monopoly, Inc. v.
Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981). “Apparently
conceding the issue, Applicant does not address these du Pont factors in its brief, so
we offer only a brief explanation of our conclusion.” In re Morinaga Nyugyo K.K., 120
USPQ2d 1738, 1740 (TTAB 2016).
The goods identified in the application include “shirts,” while the goods identified
in the cited registration are “t-shirts.” The goods identified broadly in the application
as “shirts” encompass the subset of those goods identified more narrowly as “t-shirts”
in the cited registration, and the involved goods are thus legally identical in part. Cf.
In re i.am.symbolic, llc, 127 USPQ2d 1627, 1629 (TTAB 2018) (goods identified in
Serial No. 88255895
- 5 -
application as “formal shirts,” “hooded shirts,” “polo shirts,” and “sports shirts” were
encompassed within goods identified in the cited registration as “shirts”). The second
DuPont factor strongly supports a finding of a likelihood of confusion. Id.
The identifications of these legally identical goods do not contain any restrictions
as to their channels of trade, and these legally identical goods are thus “presumed to
travel in the same channels of trade to the same class of purchasers.” In re Viterra
Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting Hewlett-
Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir.
2002)). The third DuPont factor also strongly supports a finding of a likelihood of
confusion.
B. Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we consider “the similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression.” Palm Bay Imps. v. Veuve Cliquot Ponsardin Maison Fondee en 1772, 396
F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting DuPont, 177 USPQ at
567). “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) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d mem., 777 F.
App’x 516 (Fed. Cir. Sept. 13, 2019).
The proper test regarding similarity “is not a side-by-side comparison of the
marks, but instead whether the marks are sufficiently similar in terms of their
commercial impression such that persons who encounter the marks would be likely
Serial No. 88255895
- 6 -
to assume a connection between the parties.” Cai v. Diamond Hong, Inc., 901 F.3d
1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs. Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (internal
quotation marks and citation omitted)). “The proper perspective on which the
analysis must focus is on the recollection of the average customer, who retains a
general rather than specific impression of marks.” i.am.symbolic, 127 USPQ2d at
1630 (citations omitted).
The partial legal identity of the goods reduces the degree of similarity between the
marks that is required for confusion to be likely. See, e.g., Viterra, 101 USPQ2d at
1912; In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010);
Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698,
1700 (Fed. Cir. 1992)).
The marks must be considered in their entireties, but “in articulating reasons for
reaching a conclusion on the issue of confusion, there is nothing improper in stating
that, for rational reasons, more or less weight has been given to a particular feature
of a mark, provided the ultimate conclusion rests on consideration of the marks in
their entireties.” Detroit Athletic Co., 128 USPQ2d at 1051 (quoting In re Nat’l Data
Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985)).
The involved marks are both composite word-and-design marks. The Examining
Attorney argues that in such marks, “the word portion is often considered the
dominant feature and is accorded greater weight in determining whether marks are
confusingly similar . . . .” 6 TTABVUE 7. Neither he nor Applicant addresses the
Serial No. 88255895
- 7 -
application of this principle to Applicant’s mark per se, but we find that it is
applicable to that mark, which we reproduce again below for ease of reference in
following our analysis:

The words SUPER DRAFT are set apart from the smaller design element of the mark,
and the design consists largely of the stylized letters “SD,” which in the context of the
mark as a whole is an obvious abbreviation of the accompanying words SUPER
DRAFT. We find that the words SUPER DRAFT are the dominant element of
Applicant’s mark because they are “likely to make a greater impression upon
purchasers, to be remembered by them, and to be used by them to request the goods.”
In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018) (citing Viterra,
101 USPQ2d at 1908 (internal citation omitted)).
Applicant and the Examining Attorney disagree about the dominant portion of the
cited mark. Applicant argues that the “only common element, the wording
‘SUPERDRAFT’ (spelled ‘SUPER DRAFT’ in Applicant’s mark) is so small in the cited
mark as to be inconspicuous, if not illegible ,” 4 TTABVUE 3; that the “dominant
portion of the cited mark—the design element—creates a different enough impression
that confusion is unlikely,” id.; that the cited mark “is dominated by the letter ‘P’,
which has no particular significance in Applicant’s mark,” id. at 5; and that the
“Examining Attorney’s mistaken conclusion that the word portion of the cited mark
Serial No. 88255895
- 8 -
must dominate—no matter how inconspicuous and barely legible—must be reversed.”
Id. at 6.
Applicant further argues that the “Board has repeatedly found no likelihood of
confusion where a prominent design element dominates over common wording
between the respective marks.” Id. (citing In re Covalinski, 113 USPQ2d 1166 (TTAB
2014); In re White Rock Distilleries, Inc., 92 USPQ2d 1282 (TTAB 2009); Parfums de
Couer Ltd. v. Lazarus, 83 USPQ2d 1012 (TTAB 2007); Steve’s Ice Cream v. Steve’s
Famous Hot Dogs, 3 USPQ2d 1477 (TTAB 1987)). Applicant also cites a non-
precedential case, In re Primeway Int’l LLC, Serial No. 87059786 (TTAB Jan. 9,
2019), involving a composite mark.
The Examining Attorney responds that Applicant’s “assertion that the dominant
portion of the cited registered mark is [the] design portion because ‘the wording
‘SUPERDRAFT’ is so small in the cited mark as to be inconspicuous, if not illegible,’
is not supported by any evidence.” 6 TTABVUE 7 (quoting 4 TTABVUE 3). He argues
that “[a]ll of the wording in the cited registered mark including the term
‘SUPERDRAFT’ is both highly visible and easily made out,” id., and that “the terms
appear not once but twice in the registrant’s mark,” and “are physically set apart in
the mark so the terms are highly visible and easily discernable.” Id. at 8. He
distinguishes Covalinski and the other cases cited by Applicant on essentially these
grounds. Id. at 8-9.
We reproduce the cited mark again below for ease of reference in following our
analysis of the dominant portion of the cited mark:
Serial No. 88255895
- 9 -

The Federal Circuit has held that “[i]n the case of a composite mark containing both
words and a design, ‘the verbal portion of the mark is the one most likely to indicate
the origin of the goods to which it is affixed.’” Viterra, 101 USPQ2d at 1908 (quoting
CBS, Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983)). The court
has cautioned, however, that marks “must be considered on a case-by-case basis,” id.,
and has held that the Board can “in appropriate circumstances, give greater weight
to a design component of a composite mark.” Jack Wolfskin Ausrustung Fur Draussen
GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d
1129, 1135 (Fed. Cir. 2015).
Here, the cited mark’s anthropomorphic crowned figure in right profile in the form
of the letter “P” is located in the center of the circular design and is by far the mark’s
largest element. It contains no words. This “King P” figure in the middle of the circle
is the mark’s “most visually prominent feature,” id., and is the focal point to which
the eyes are immediately drawn when the mark is encountered, before attention is
given to the smaller words in the ring on the periphery of the circle.
Serial No. 88255895
- 10 -
While we agree with the Examining Attorney that the words SUPERDRAFT and
THE POST in the outer ring are readable, to the extent that they are read and
internalized, their relative significance and import in the cited mark are unclear. The
Examining Attorney acknowledges that “there is no identifiable order in which the
terms ‘SUPERDRAFT’ and ‘THE POST’ should be considered when looking at the
registrant’s mark,” 6 TTABVUE 8, and the words THE POST are at least as likely as
the word SUPERDRAFT, if not more likely, to be the primary source-identifying
element of the verbal portion of the mark. The letter formed by the “King P” figure
could readily be viewed as abbreviating the word POST in the phrase THE POST, as
“P” has no other apparent separate meaning and no discernable significance with
respect to the word SUPERDRAFT. In any event, we reject the Examining Attorney’s
suggestion that the word SUPERDRAFT that appears together with the words THE
POST in the outer ring of the mark is its dominant portion. In the context of the mark
as a whole, the “King P” figure, not the word SUPERDRAFT, is more memorable. We
find that the “appropriate circumstances” noted by the Federal Circuit in Jack
Wolfskin exist here given that the cited composite mark contains an unusual and
uncommon design feature.
We turn now to the required comparison of the marks in their entireties, giving
greater weight in that comparison to the words SUPER DRAFT in Applicant’s mark
and to the “King P” figure in the cited mark than to other elements of the marks.
The marks have obvious, in fact striking, differences in appearance when viewed
together, but they “must be considered . . . in light of the fallibility of human memory’
Serial No. 88255895
- 11 -
and ‘not on the basis of side-by-side comparison.’” In re St. Helena Hosp., 774 F.3d
747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting San Fernando Elec. Mfg. Co.
v. JFD Elecs. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977)). We
must take into account “the recollection of the average customer, who retains a
general rather than specific impression of marks.” i.am.symbolic, 127 USPQ2d at
1630. The recalled general impression of the cited mark will surely include the mark’s
circular design and the dominant “King P” figure located in the middle, which have
no counterparts in Applicant’s mark. Even assuming, however, that the general
impression of the cited mark also includes the words THE POST and SUPERDRAFT,
a consumer with a general recollection of the circular format of the cited mark and
its “King P” figure who separately encounters Applicant’s mark is not likely to view
Applicant’s mark as similar in appearance to the cited mark merely because both
marks contain the commonly used words SUPER and DRAFT, the first of which is
merely descriptive as laudatory. Consumers will generally recall the cartoonish
appearance of the cited mark, including its “King P” figure, which contrasts sharply
with the sleek, modernistic appearance of Applicant’s mark.
In White Rock Distilleries, the Board found that the composite word-and-design
mark shown below was dissimilar in appearance to the standard character mark
VOLTA:
Serial No. 88255895
- 12 -

We find here that the design elements of the cited mark, including its circular carrier
for the “King P” figure, and the figure itself, similarly “serve to distinguish the
registered mark visually from [A]pplicant’s mark.” White Rock Distilleries, 92
USPQ2d at 1284.
With respect to sound, given the dominance of SUPER DRAFT in Applicant’s
mark, it will be verbalized as such or possibly as SUPER alone, but it is not clear how
the cited mark will be verbalized and recalled aurally, or even if it could be verbalized.
The multiple elements comprising the cited mark make a number of verbalizations
plausible. Although ordinarily “[a] design is viewed, not spoken,” In re Electrolyte
Labs., Inc., 913 F.2d 930, 16 USPQ2d 1239, 1240 (Fed. Cir. 1990), the dominant
anthropomorphic king figure contained within the circle design in the cited mark
forms the letter “P,” which can be verbalized as the letter alone or perhaps as slang
such as “King P.” The cited mark also contains the words THE POST and
SUPERDRAFT, which could be verbalized separately or together as “THE POST
SUPERDRAFT” or “SUPERDRAFT THE POST,” with the former phrase being more
Serial No. 88255895
- 13 -
plausible given the logical sequence of the words and the order in which they appear
at the top of the mark above the “King P” figure. We find it decidedly unlikely,
however, that a consumer attempting to verbalize the cited mark would verbalize it
simply as “SUPERDRAFT.” If the cited mark were verbalized as King P, P, or THE
POST, it would have no similarity in sound to Applicant’s mark. If the cited mark
were verbalized as King P THE POST SUPERDRAFT or THE POST SUPERDRAFT,
there would be some similarity in sound resulting from the presence of the word
SUPERDRAFT in both marks, but it would be outweighed by the dissimilarity in
sound of the other elements.
Finally, with respect to connotation and commercial impression, the cited mark
contains the wording THE POST and SUPERDRAFT, as well as the anthropomorphic
“King P” figure. These elements imbue the cited mark with a meaning relating to a
thing or entity called THE POST and a cartoonish king creature, a meaning that is
entirely absent from Applicant’s mark, which has no comparable elements. Any
similarity in meaning resulting from the presence of the words SUPER DRAFT in
each mark is outweighed by the dissimilarity in meaning resulting from the presence
of the other elements in the cited mark.
We find that the marks are quite dissimilar in appearance, sound, and connotation
and commercial impression when they are considered in their entireties, and that the
first DuPont factor strongly supports a finding of no likelihood of confusion.
Serial No. 88255895
- 14 -
C. Balancing the DuPont Factors
The goods, channels of trade, and classes of consumers are identical in part, but
the marks are sufficiently dissimilar to “make confusion unlikely even though the
involved [marks] are used on identical goods sold through identical channels of trade
to identical customers.” In re Medline Indus., Inc., 2020 USPQ2d 10237, *13 (TTAB
2020) (citing Champagne Louis Roederer S.A. v. Delicato Vineyards, 148 F.3d 1373,
47 USPQ2d 1459, 1460 (Fed. Cir. 1998); Kellogg Co. v. Pack’em Enters., Inc., 951 F.2d
330, 21 USPQ2d 1142, 1144-45 (Fed. Cir. 1991)).
Decision: The refusal to register is reversed.