Target Brands, Inc.v.IQA Products, LLC

Trademark Trial and Appeal Board

Aug 25, 2015

No. 91204357 (T.T.A.B. Aug. 25, 2015)

This Opinion is Not a
Precedent of the TTAB

Mailed: August 25, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Target Brands, Inc.
v.
IQA Products, LLC
_____

Opposition No. 91204357
_____

James R. Steffen, David R. Merritt, and Jodi A. DeSchane of Faegre Baker Daniels
LLP for Target Brands, Inc.

David B. Cupar and Matthew J. Cavanagh of McDonald Hopkins LLC
for IQA Products, LLC.
_____

Before Kuhlke, Lykos, and Hightower,
Administrative Trademark Judges.

Opinion by Hightower, Administrative Trademark Judge:
IQA Products, LLC (“Applicant”) seeks to register the mark BABY BULLSEYE,
in standard characters and with “BABY” disclaimed, on the Principal Register for
“burp cloths” in International Class 24.1 Target Brands, Inc. (“Opposer”) opposes
registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), asserting

1 Application Serial No. 85305143, filed April 26, 2011, based on Applicant’s allegation of a
bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act,
15 U.S.C. § 1051(b).
Opposition No. 91204357
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priority and a likelihood of confusion with several of its marks, including:

Opposer also opposes registration under Section 1(b) of the Trademark Act, alleging
that Applicant lacked a bona fide intention to use its mark in commerce on the
identified goods at the time it filed its application.
Opposer filed its brief on April 15, 2015. Applicant submitted neither evidence
nor a brief. Nonetheless, Opposer bears the burden of proving its claim of likelihood
of confusion by a preponderance of the evidence. Cunningham v. Laser Golf Corp.,
222 F.3d 943, 55 USPQ2d 1842, 1848 (Fed. Cir. 2000).
We sustain the opposition pursuant to Trademark Act Section 2(d).
I. Record
The record in this case consists of the pleadings and the file of the involved
application. Trademark Rule 2.122(b)(1).
In addition, Opposer made of record the following evidence:
• A transcript of the testimony deposition of Ann Dunn Wessberg,
senior trademark and copyright counsel for Opposer, with exhibits
(“Wessberg Test.”);2
• Printed publications discussing Opposer’s marks;3
• Applicant’s responses to Opposer’s interrogatories (including documents
provided in response to the interrogatories) and requests for production of
documents stating that no responsive documents exist;4

2 26 and 27 TTABVUE.
3 First Notice of Reliance, Exhibits 1-3, 29 TTABVUE.
4 Second Notice of Reliance, Exhibits 4-8, 30 TTABVUE. Applicant’s responses to Opposer’s
requests for production providing other responses are not properly of record and have been
given no consideration in this decision. See Trademark Rule 2.120(j)(3); United Global
Media Group, Inc. v. Tseng, 112 USPQ2d 1039, 1044 (TTAB 2014).
Opposition No. 91204357
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• Materials from Opposer’s Internet sites, including its annual reports for
the years 2009 through 2013, screenshots of Opposer’s pages on
Facebook.com, and screenshots showing goods offered for sale on
Target.com;5 and
• Printouts from the Patent and Trademark Office’s Trademark Status &
Document Retrieval database (TSDR) showing the status and title of
Opposer’s existing pleaded registrations, as follows:6
Reg. No. Date Issued Mark Selected Goods/Services
1 1282569 6/19/84 Men’s, women’s and children’s
clothing-namely, shirts (Class 25)
2 2760047 9/2/03

Several Class 16 goods, including
disposable diapers and disposable
training pants (Class 16)
3 2762669 9/9/03

“Men’s, women’s and children’s
apparel, namely, shirts, coats,
headwear, jackets, and socks”
(Class 25)
4 2778472 10/28/03

Numerous goods in Class 3,
including “baby bath cleansers;
baby lotion; baby oil, baby oil gel
and creamy baby oil; baby powder
and cornstarch baby powder; baby
shampoo”

5 Fourth Notice of Reliance, Exhibits 23-32, 32-39 TTABVUE.
6 Third Notice of Reliance, Exhibits 10-14 and 16-22, 31 TTABVUE. Opposer also submitted
printouts for Registration Nos. 972082 and 3372756 (Exhibits 9 and 15). Registration
No. 972082 was not pleaded; therefore, Opposer may not rely on it for any Section 7(b)
presumptions, but may use it for any other relevant purpose. Registration No. 3372756 has
been cancelled pursuant to Trademark Act Section 8 and thus is evidence only that the
registration issued. See Action Temp. Servs. Inc. v. Labor Force Inc., 870 F.2d 1563, 10
USPQ2d 1307, 1309 (Fed. Cir. 1989).
Each class number referenced above is an International Class. The first five pleaded
registrations listed in the chart have been renewed; declarations of continued use and
incontestability have been accepted and acknowledged for the sixth through eighth
registrations listed.
Opposition No. 91204357
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Reg. No. Date Issued Mark Selected Goods/Services
5 2792429 12/9/03

“Baby bottle liners; gloves for
medical use; and thermometers for
medical use” (Class 10)
6 2984026 8/9/05

“Online retail store services and
electronic catalog services featuring
a wide variety of consumer baby
goods; online gift registry services;
online ordering services in the field
of picture gifts” (Class 35); and
“Providing online publications,
namely newsletters and buying
guides in the field of baby care and
baby products” (Class 41)
[BABY disclaimed]
7 2984027 8/9/05

“Retail store services featuring a
wide variety of consumer baby
goods; gift registry services”
(Class 35) [BABY disclaimed]
8 3259178 7/3/07

Numerous goods in Classes 3, 4, 6,
8, 11, 14, 16, 20, 21, 24, and 27,
including bath sheets, bath towels,
washcloths, hand towels, fingertip
towels, and dish towels in Class 24
9 3602411 4/7/09 BULLSEYE
BODEGA
“Retail department store services”
(Class 35) [BODEGA disclaimed]
10 3871169 11/2/10 BULLSEYE
BAZAAR
“Retail store services featuring a
wide variety of consumer goods”
(Class 35) [BAZAAR disclaimed]
11 3934259 3/22/11 BULLSEYE FREE
SHIPPING
“Providing free shipping services for
online consumer purchases”
(Class 39) [FREE SHIPPING
disclaimed]
12 4112802 3/13/12 BULLSEYE
BOUTIQUE
“Retail store services featuring a
wide variety of consumer goods”
(Class 35) [BOUTIQUE disclaimed]

Opposition No. 91204357
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II. Opposer’s Standing and Priority
Standing is a threshold issue that must be proven by the plaintiff in every inter
partes case. See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025
(Fed. Cir. 1999). Opposer’s standing to oppose registration of Applicant’s mark is
established by its pleaded registrations, which the record shows to be valid and
subsisting, and owned by Opposer. See, e.g., Cunningham, 55 USPQ2d at 1844. In
addition, because Opposer’s pleaded registrations are of record, priority is not an
issue with respect to the goods and services covered by Opposer’s pleaded
registrations. Penguin Books Ltd. v. Eberhard, 48 USPQ2d 1280, 1286 (TTAB 1998)
(citing King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108,
110 (CCPA 1974)).
III. Likelihood of Confusion
Our determination under Trademark Act Section 2(d) is based on an analysis of
all probative facts in evidence that are relevant to the factors bearing on the issue of
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 Majestic Distilling Co., 315 F.3d 1311,
65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities
between the goods or services, the first two du Pont factors. 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.”).
Opposition No. 91204357
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We focus our analysis on Registration Nos. 2984026 and 2984027 for the mark
for retail and online retail store services featuring baby goods because
if we do not find a likelihood of confusion with that mark and its associated services,
then there would be no likelihood of confusion with the marks in the other pleaded
registrations. See In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB
2010).
We address in turn the du Pont factors on which our decision rests.
A. Similarity of the Goods
The second du Pont factor assesses the similarity or dissimilarity of the parties’
goods and services. In comparing the goods and services, “[t]he issue to be
determined . . . is not whether the goods of plaintiff and defendant are likely to be
confused but rather whether there is a likelihood that purchasers will be misled into
the belief that they emanate from a common source.” Helene Curtis Indus. Inc. v.
Suave Shoe Corp., 13 USPQ2d 1618, 1624 (TTAB 1989). The parties’ goods and
services need not be similar or even competitive to support a finding of likelihood of
confusion. It is sufficient that the respective goods and services are related in some
manner, or that the conditions surrounding their marketing are such that they
would be encountered by the same consumers under circumstances that could, in
light of the similarity of the marks, give rise to the mistaken belief that they
originate from or are associated with the same source. See In re Albert Trostel &
Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993).
Opposition No. 91204357
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Applicant’s identified goods are “burp cloths,” which are baby goods. Services
identified by Opposer in Registration Nos. 2984026 and 2984027 for the mark
include, respectively, “Online retail store services and electronic catalog
services featuring a wide variety of consumer baby goods” and “Retail store services
featuring a wide variety of consumer baby goods.” Retail store services have
frequently been found to be related to goods sold by those retail stores. See, e.g.,
In re Hyper Shoppes, 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988) (affirming that
confusion is likely between retail grocery and general merchandise store services on
the one hand and furniture on the other); Wet Seal, Inc. v. FD Mgmt., Inc., 82
USPQ2d 1629, 1640 (TTAB 2007) (finding women’s clothing stores and fragrances
to be related); Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003) (finding
applicant’s clothing items related to opposer’s retail and mail order services in the
field of clothing); see also 4 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS &
UNFAIR COMPETITION § 24:25 (4th ed. June 2015) (“Where the services consist of
retail sales services, likelihood of confusion is found when another mark is used on
goods which are commonly sold through such a retail outlet.”).
Opposer also submitted evidence that burp cloths are among the goods offered
for sale under Opposer’s “Bullseye” design mark through its online and retail
store services featuring baby goods. This evidence includes testimony that Opposer
sells burp cloths in its stores7 and Internet screen shots showing that a search for

7 See Wessberg Test. at 8:16-9:2, 26 TTABVUE 9-10.
Opposition No. 91204357
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“burp cloths” on the website Target.com returned more than 200 results.8 See Wet
Seal, 82 USPQ2d at 1640.
Based on the record evidence, we find that Applicant’s goods are related to
Opposer’s retail store services and online retail store services for consumer baby
goods. The second du Pont factor thus weighs in favor of a likelihood of confusion.
B. Similarity of the Marks
We turn next to the first du Pont factor, which is the similarity of the parties’
marks. In a likelihood of confusion analysis, we compare the marks in their
entireties for similarities and dissimilarities in appearance, sound, connotation and
commercial impression. Palm Bay Imports, 73 USPQ2d at 1692. “The proper test 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 to assume a connection between the parties.”
Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713,
1721 (Fed. Cir. 2012) (citation omitted).
Applicant’s mark is BABY BULLSEYE, with BABY disclaimed. Opposer’s mark
combines Opposer’s “Bullseye” design and the disclaimed word BABY
horizontally within consecutive square carriers.
Under the doctrine of legal equivalents, which is based on a recognition that a
pictorial representation and its literal equivalent are likely to impress the same
mental image on purchasers, a design may be found to be confusingly similar to a

8 Fourth Notice of Reliance, Exhibits 30-31, 39 TTABVUE 78-85.
Opposition No. 91204357
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word consisting of the design’s literal equivalent. See, e.g., Izod, Ltd. v. Zip Hosiery
Co., 405 F.2d 575, 160 USPQ 202 (CCPA 1969) (TIGER HEAD and tiger head
configuration); Shunk Mfg. Co. v. Tarrant Mfg. Co., 318 F.2d 328, 137 USPQ 881
(CCPA 1963) (SCOTCHMAN and Scotsman figure); In re Rolf Nilsson AB, 230
USPQ 141 (TTAB 1986) (LION and lion head figure with letter “L”); In re Duofold,
Inc., 184 USPQ 638 (TTAB 1974) (GOLDEN EAGLE and pictorial representation of
a golden eagle); Clover Farm Stores Corp. v. James G. Gill Co., 142 USPQ 233
(TTAB 1964) (RED BAG and a red bag for coffee).
In the present case, BULLSEYE is the literal equivalent of the design portion of
Opposer’s composite mark . The clear equivalency in meaning between
the word BULLSEYE and Opposer’s design mark is recognized and promoted by
Opposer. Opposer’s witness testified:
Q. And is it your opinion that most consumers
understand the mark represented by Exhibit 2 to be
called the Bullseye?
A. Yes.
Q. Do you call TBI’s Bullseye design mark anything
else?
A. No. It’s the Bullseye.
Q. Does Target use the word Bullseye in any other
way?
A. Yes, it does.
Q. What ways, for example?
A. We have it – we refer to our trademark mascot, the
– the dog, as Bullseye, that’s his name. We’ve used it in a
store in New York, Bullseye Bodega. We’ve used it at that
Opposition No. 91204357
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– Bullseye Bodega also is a section of the store, of our
stores. We’ve used Bullseye Bazaar, we’ve used Bullseye
free shipping, many ways.9
In both of the parties’ marks, the equivalent wording and design are combined
with the single word BABY, albeit in reverse order. This transposition does not
serve to distinguish the parties’ marks or change their connotations. “[T]he reversal
in one mark of the essential elements of another mark may serve as a basis for a
finding of no likelihood of confusion only if the transposed marks create distinctly
different commercial impressions.” In re Nationwide Indus. Inc., 6 USPQ2d 1882,
1884 (TTAB 1988); see also Bank of Am. Nat’l Trust & Savings Assn. v. Am. Nat’l
Bank of St. Joseph, 201 USPQ 842, 845 (TTAB 1978) (collecting cases with inverse
marks).
We find that and BABY BULLSEYE are similar in connotation and
engender highly similar overall commercial impressions. Therefore, the first
du Pont factor weighs in favor of a finding that confusion is likely.
IV. Conclusion
In sum, we have found that the first and second du Pont factors weigh in favor of
a likelihood of confusion, while no factors weigh against such a finding. Considering
the record evidence as a whole, we find that Opposer has carried its burden to
establish by a preponderance of the evidence that the parties’ marks are likely to
cause confusion when used in association with their respective goods and services.

9 Wessberg Test. at 6:20-7:12, 26 (correction to 7:11), 26 TTABVUE 7-8, 27; see also id. at
16:14-17:8 & Exhibit 10 (“Bullseye Games” advertisement used at Target Field), 26
TTABVUE 17-18 & 27 TTABVUE 64-68.
Opposition No. 91204357
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Because we have found for Opposer on its likelihood of confusion claim, we need
not reach the merits of its claim under Section 1(b) of the Trademark Act. See
Multisorb Techs., Inc. v. Pactiv Corp., 109 USPQ2d 1170 (TTAB 2013).
Decision: The opposition is sustained pursuant to Section 2(d).