Troy Mangone

Trademark Trial and Appeal Board

Apr 16, 2018

No. 87540183 (T.T.A.B. Apr. 16, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: April 16, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Troy Mangone
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Serial No. 87540183
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Gene Bolmarcich of Law Offices of Gene Bolmarcich,
for Troy Mangone.
Barbara Brown, Trademark Examining Attorney, Law Office 116,
Christine Cooper, Managing Attorney.
_____

Before Kuhlke, Shaw and Larkin,
Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:
Troy Mangone (“Applicant”) seeks registration on the Principal Register of the
mark GRIP SECRET in standard characters for “Golf grip training device that fits
over a golf grip for the purpose of teaching the proper positioning of a golfer’s fingers
to form a proper grip for improved golf shots,” International Class 28.1 The word
“GRIP” is disclaimed.

1 Application Serial No. 87540183 was filed on July 24, 2017, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051, based upon Applicant’s allegation of first use and first use
in commerce on February 1, 2017.

Serial No. 87540183
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The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicant’s mark, when used in connection with the identified goods, so resembles
the mark SECRET GRIP in standard characters, registered on the Principal Register
for “Golf club grips,” in International Class 28,2 as to be likely to cause confusion,
mistake or deception.
When the refusal was made final, Applicant appealed and briefs were filed. We
affirm the refusal to register.
I. Likelihood of Confusion
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) (“du Pont”) cited in B&B Hardware, Inc. v. Hargis
Ind., Inc., 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015). See also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). Even within the du
Pont list, only factors that are “relevant and of record” need be considered. 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.”). In any likelihood of confusion
analysis, two key considerations are the similarities between the marks and the
similarities between the goods. See In re i.am.symbolic, llc, 866 F.3d 1315, 123

2 Registration No. 4305729, issued on March 19, 2013. The word “GRIP” is disclaimed.
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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., 303 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed.
Cir. 2002)); 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.”).
A. Similarity of the Goods/Channels of Trade/Consumers
With regard to the goods, channels of trade and classes of consumers, we must
make our determinations based on the goods as they are identified in the application
and cited registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746
F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard
Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002); Octocom Sys., Inc.
v. Houston Comps. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
Even where the goods are not identical “the consuming public may perceive them as
related enough to cause confusion about the source or origin of the goods … .” Hewlett-
Packard Co. v. Packard Press Inc., 62 USPQ2d at 1004. Applicant presented no
argument or evidence on these factors.
Applicant’s “[g]olf grip training device that fits over a golf grip for the purpose of
teaching the proper positioning of a golfer’s fingers to form a proper grip for improved
golf shots” are designed to be used with Registrant’s identified goods “[g]olf club
Serial No. 87540183
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grips.” In re Sela Prods., LLC, 107 USPQ2d 1580 (TTAB 2013) (finding that in the
course of purchasing a television, audio or home theater system, purchasers would
encounter both surge protectors and wall mounts and brackets); In re Cook Medical
Tech. LLC, 105 USPQ2d 1377 (TTAB 2012) (medical guiding sheaths used in
conjunction with catheters are closely related, complementary goods). In view of their
complementary nature, the goods are likely to be purchased together and used in
conjunction with each other because Applicant’s identification of goods expressly
states that the grip trainers are used over a golf grip. The related and complementary
nature of the goods is corroborated by the copies of use-based, third-party
registrations submitted by the Examining Attorney.3 See In re Aquamar, Inc., 115
USPQ2d 1122, 1126 n.5 (TTAB 2015) (citing In re Mucky Duck Mustard Co., 6
USPQ2d 1467, 1470 n.6 (TTAB 1988)) (third-party registrations may serve to suggest
that the goods are of a type which may emanate from a single source).
Considering the channels of trade and classes of consumers, because there are no
limitations as to channels of trade or classes of purchasers in either the application
or cited registration, we must presume that Applicant’s and Registrant’s goods move
in all normal channels of trade and are available to all classes of purchasers for such
goods. See, e.g., Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d
1367, 1373, 107 USPQ2d 1167, 1173 (Fed. Cir. 2013); In re Thor Tech, Inc., 90
USPQ2d 1634, 1638 (TTAB 2009) (“We have no authority to read any restrictions or

3 Nov. 28, 2017 Office Action at 39-41; 45-47. All citations to the prosecution history for the
application are to the TSDR (Trademark Status and Document Retrieval) database.
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limitations into the registrant’s description of goods.”). In view of the complementary
nature of the goods, it is likely that they will travel in identical, or at least
overlapping, trade channels and be purchased by the same classes of consumers,
golfers. In addition, the Examining Attorney submitted printouts of web pages from
various websites that offer golf grips and golf training devices at golf stores, sporting
goods stores and pro shops.4
In view of the above, these du Pont factors favor a finding of likelihood of
confusion.
B. Similarity/Dissimilarity of the Marks
Under this factor, we compare Applicant’s and Registrant’s marks “in their
entireties as to appearance, sound, connotation and commercial impression.” Palm
Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567). The
proper focus is on the recollection of the average customer, who retains a general
rather than specific impression of the marks. Geigy Chem. Corp. v. Atlas Chem.
Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon,
102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v. Oliver & Winston,
Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ
106, 108 (TTAB 1975). Because the goods are golf accessories without any restrictions

4 Nov. 28, 2017 Office Action at 17-34.
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or limitations as to price point or classes of consumers, as discussed above, the
average customer is an ordinary consumer of the respective goods.
The wording in the marks is identical. Applicant’s mark GRIP SECRET simply
transposes Registrant’s mark SECRET GRIP. The word GRIP is disclaimed in both
marks and, as such, is less significant in distinguishing source. Looking at the marks
in their entireties, we find that the transposition does not significantly alter the
connotation or commercial impression of the marks and in both cases the potential
consumers will focus on the word SECRET for identification of source.
Where the primary difference between marks is the transposition of the elements
that compose the marks, and where this transposition does not change the overall
commercial impression, there may be a likelihood of confusion. See, e.g., In re Wine
Soc’y of Am. Inc., 12 USPQ2d 1139, 1142 (TTAB 1989) (holding THE WINE SOCIETY
OF AMERICA and design for wine club membership services including the supplying
of printed materials, and AMERICAN WINE SOCIETY 1967 and design for
newsletters, bulletins, and journals, likely to cause confusion); In re Nationwide
Indus., Inc., 6 USPQ2d 1882, 1884 (TTAB 1988) (holding RUST BUSTER (with
“RUST” disclaimed) for rust-penetrating spray lubricant, and BUST RUST for
penetrating oil, likely to cause confusion); In re Gen. Tire & Rubber Co., 213 USPQ
870, 871 (TTAB 1982) (holding SPRINT STEEL RADIAL (with “STEEL” and
“RADIAL” disclaimed) for pneumatic tires, and RADIAL SPRINT (with “RADIAL”
disclaimed) for radial tires, likely to cause confusion). However, if the transposed
mark creates a distinctly different commercial impression, then confusion is not
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likely. See, e.g., In re Best Prods. Co., 231 USPQ 988, 989-90 (TTAB 1986) (holding
BEST JEWELRY and design (with “JEWELRY” disclaimed) for retail jewelry store
services, and JEWELERS’ BEST for bracelets, not likely to cause confusion).
Applicant argues the marks are different based on “two distinct definitions of each
of the words ‘grip’ and ‘secret’.” 4 TTABVUE 4.5 The word “grip” is defined, inter alia,
as 1) “manner or style of gripping” and 2) “a part or device for gripping.”6 The word
“secret” is defined, inter alia, as 1) “kept from the knowledge of any but the initiated
or privileged” and 2) “something that is kept secret, hidden, or concealed.”7 It is
Applicant’s contention that these “distinct definitions” are manifested in connection
with the respective goods such that the marks have different meanings in the context
of the respective goods. Specifically, Applicant seeks registration for a training device
that fits over a golf grip to teach proper positioning of a golfer’s fingers to form a
proper grip that “utilizes a ‘grip secret’ taught by Ben Hogan.” 4 TTABVUE 3.
Therefore, in the context of Applicant’s goods GRIP SECRET means “a manner or
style of gripping” that is “kept from the knowledge of any but the initiated or
privileged.” By contrast, the cited registration is for a golf grip that “contains a ‘secret’

5 Citations to the appeal record are to TTABVUE. See TBMP § 1203.01.
6 MERRIAM-WEBSTER DICTIONARY, Oct. 30, 2017 Response to Office Action at 11.
7 Dictionary.com based on RANDOM HOUSE DICTIONARY (2017). Applicant’s request for
judicial notice of the definition of “secret” attached to its brief is granted. Univ. of Notre Dame
du Lac v. J.C. Gourmet Food Imps. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372,
217 USPQ 505 (Fed. Cir. 1983) (Board may take judicial notice of dictionary definitions); In
re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006) (judicial notice taken of online
dictionaries that exist in printed format or regular fixed editions).

Serial No. 87540183
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(hidden) weight that assists the golfer in making better puts [sic].” 4 TTABVUE 4.
Thus, SECRET GRIP refers to “something that is kept secret, hidden or concealed”
within “a part or device for gripping.” Id.
The Examining Attorney turns to the definition for the word “secret” as
“something taken to be a specific or key to a desired end”8 such that “the wording
GRIP SECRET and SECRET GRIP conveys to consumers that the goods offered
under the marks provide the key to an improved grip when used in connection with
golf club accessories.” 4 TTABVUE 5. The Examining Attorney contends that
“consumers in the market for golf related accessories to improve their golf game are
likely to perceive this combination of terms GRIP with SECRET as meaning the goods
will provide the secret or key to improving their grip and in turn their game …
[r]egardless of word order in this case, the marks GRIP SECRET and SECRET GRIP
convey the same meaning when used in connection with golf club related grip
accessories.” 6 TTABVUE 6.
With regard to Applicant’s arguments, we reiterate that we must make our
determination based on the information in the application and cited registration.
Applicant’s goods are not further defined as a “Ben Hogan secret” and the
identification of goods in the registration does not describe the golf club grips as
containing a hidden weight. To the extent excerpts from Applicant’s and Registrant’s
websites provide some understanding of the connotation and commercial impression

8 Merriam-Webster Online Dictionary (www.merriam-webster.com). The Examining
Attorney’s request that we take judicial notice of this dictionary definition is granted.
Serial No. 87540183
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conveyed by the respective marks,9 as the Examining Attorney observes, the
advertising for both “claim [they are] the secret to improving your golf game by
modifying your grip.” 6 TTABVUE 6. The ultimate connotation and commercial
impression of both marks, as used in connection with the respective goods, is that
they offer the secret to improve the consumer’s golf game through the grip. When
comparing marks, “[t]he 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 [consumers] who encounter the marks would be likely to
assume a connection between the parties.” In re U.S. Warriors Ice Hockey Program,
Inc., 122 USPQ2d 1790, 1795 (TTAB 2017) (citing Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 1368, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012));
Trademark Manual of Examining Procedure §1207.01(b). As noted above, the proper
focus is on the recollection of the average purchaser, who retains a general rather
than specific impression of trademarks. In re Bay State Brewing Co., 117 USPQ2d
1958, 1960 (TTAB 2016) (citing Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735,
1741 (TTAB 1991), aff’d per curiam, 972 F.2d 1353 (Fed. Cir. 1992)).
We find that the similarities in appearance, sound, connotation and commercial
impression of the marks outweigh any dissimilarity engendered by the transposition
of the words.
This du Pont factor weighs in favor of a likelihood of confusion.

9 Oct. 30, 2017 Response to Office Action at 2-10; Nov. 28, 2017 Final Office Action at 4-14.
Serial No. 87540183
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II. Balancing of Factors
When we consider that the goods are closely related, the channels of trade and
consumers overlap, and the marks are similar, we find that confusion is likely.
Decision: The refusal to register Applicant’s mark is affirmed.