Thriv NP, Inc.

Trademark Trial and Appeal Board

Dec 1, 2010

No. 77656644re (T.T.A.B. Dec. 1, 2010)

Mailed:
December 1, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
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In re Thriv NP, Inc.
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Serial No. 77656644
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Request for Reconsideration
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Seth M. Nehrbass of Garvey, Smith, Nehrbass & North, L.L.C.
for Thriv NP, Inc.

N. Gretchen Ulrich, Trademark Examining Attorney, Law
Office 113 (Odette Bonnet, Managing Attorney).
_______

Before Quinn, Walsh and Bergsman,
Administrative Trademark Judges.1

Opinion by Bergsman, Administrative Trademark Judge:

Thriv NP, Inc. (“applicant”) filed an intent-to-use
application for the mark THRĪV NATURAL PERFORMANCE and
design, shown below, for “moisture-wicking clothing,
namely, athletic jerseys, athletic shirts, athletic shorts,
athletic pants, golf shirts, sleepwear, sweatpants,

1 Administrative Trademark Judge Walsh has been substituted for
Judge Hairston, who was a member of the panel when the October 4,
2010 decision was issued but retired prior to the filing of
applicant’s request for reconsideration.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77656644
2
sweatshirts, jackets, underwear, and sports bras,” in Class
25.

Applicant described the design element of the mark as “a
drop shape with a stylized image of a panda bear face.”
In a decision mailed October 4, 2010, the Board
affirmed the refusal to register the application on the
ground that applicant’s mark is likely to cause confusion
with the previously registered mark THRIVE, in standard
character form, for “men’s and women’s jeans, shorts,
pants, shirts, blouses, knit tops, t-shirts, tank tops,
suits, neckties, scarves, belts, dressing gowns, jackets,
coats, sweaters, sweatshirts, sweats, swimwear, bras,
panties, lingerie, boxer shorts, pajamas, slips, robes,
pantyhose, camisoles, skirts, dresses, belts (sic), hats,
socks, shoes, and boots” in Class 5.2
On November 4, 2010, applicant filed a request for
reconsideration of the October 4, 2010 decision. As
grounds for reconsideration, applicant contends that the
Board made the following errors:

2 Registration No. 3252977, issued June 19, 2007.
Serial No. 77656644
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1. The October 4, 2010 decision is contrary to the
holding in In re Hearst Corp., 982 F.2d 493, 25 USPQ2d 1238
(Fed. Cir. 1992);
2. The Board “overlooked” the USPTO registrations
and applications attached to applicant’s reply brief;
3. The Board “overlooked” the table of registrations
and applications including the word “Thrive” in applicant’s
main brief and referenced a different table of records in
applicant’s September 8, 2009 response;
4. The October 4, 2010 decision is not consistent
with prior USPTO decisions permitting the registration of
third-party marks with the word “Thrive”; and
5. The Board improperly dissected the mark.
The Court of Appeals for the Federal Circuit, our
primary reviewing court, explained that “marks must be
considered in the way they are used and perceived. … Marks
tend to be perceived in their entireties, and all
components must be given appropriate weight.” In re Hearst
Corp., 25 USPQ2d at 1239, citing In re National Data
Corporation, 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985).
In the latter case, the Federal Circuit further explained
that while the marks must be compared in their entireties,
in analyzing the similarity or dissimilarity of two marks,
there is nothing improper in stating that for rational
Serial No. 77656644
4
reasons, more or less weight has been given to a particular
feature of a mark. Consistent with the Hearst and National
Data decisions, the Board expressly and in detail explained
why the word “Thriv” was the dominant part of applicant’s
mark and how the entire mark would be perceived by
consumers.3 Thus, the October 4, 2010 decision was not
contrary to the Hearst decision and the Board did not
improperly dissect applicant’s mark.
Furthermore, each case must be decided on its own
facts and merits. The extent to which prior cases have
persuasive effect on the matter before us is dependent upon
whether applicant can show that the cases involve similar
facts. In re Jeep Corp., 222 USPQ 333, 336 (TTAB 1984);
see also Hyde Park Footwear Co., Inc. v. Hampshire-
Designers, Inc., 197 USPQ 639, 643 (TTAB 1977). In this
regard, the Hearst case is not particularly instructive
because the facts and evidence in that case and this
application do not appear to be similar.
There are two problems with the purported USPTO
records and tables that applicant included in and attached
to its briefs. First, the record in an application should
be complete prior to the filing of an appeal, and evidence
filed after the appeal will ordinarily not be considered by

3 October 4, 2010 decision, pp. 4-6.
Serial No. 77656644
5
the Board. After an appeal is filed, if either the
appellant or Examining Attorney desires to introduce
additional evidence, the appellant or Examining Attorney
may request the Board to suspend the appeal and to remand
the application for further examination. See Trademark
Rule 2.142(d). Because applicant did not file a request to
introduce additional evidence, the evidence included in and
attached to the briefs was not timely. Therefore, the
Board’s reference to evidence timely submitted during the
prosecution of the application (as opposed to the evidence
untimely submitted with the briefs) was correct.
Second, as pointed out in footnote 4 of the October 4,
2010 decision, a list of registrations is not proper
evidence of third-party registrations. To make
registrations of record, soft copies of the registrations
or the electronic equivalent thereof (i.e., printouts or
electronic copies of the registrations taken from the
electronic search records of the USPTO) must be submitted.
Raccioppi v. Apogee Inc., 47 USPQ2d 1368, 1370 (TTAB 1998);
In re Smith & Mehaffey, 31 USPQ2d 1531, 1532 n.3 (TTAB
1994); In re Hub Distributing, Inc., 218 USPQ 284 (TTAB
1983).
Finally, with respect to applicant’s contention that
the October 4, 2010 decision is not consistent with prior
Serial No. 77656644
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USPTO decisions permitting the registration of third-party
marks with the word “Thrive,” we again point out that each
case must be decided on its own merits. Previous decisions
by examining attorneys in approving other marks are without
evidentiary value and are not binding on the agency or the
Board. In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d
1564, 1566 (Fed. Cir. 2001); In re Sunmarks Inc., 32 USPQ2d
1470, 1472 (TTAB 1994); In re National Novice Hockey
League, Inc., 222 USPQ 638, 641 (TTAB 1984).
Decision: Applicant’s request for reconsideration is
denied.