Vermont Juvenile Furniture Manufacturing, Inc.

Trademark Trial and Appeal Board

Nov 1, 2012

No. 77313684 (T.T.A.B. Nov. 1, 2012)

Mailed: November 1, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Vermont Juvenile Furniture Manufacturing, Inc.
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Serial No. 77313684
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John J. O’Malley of Volpe and Koenig, P.C. for Vermont Juvenile Furniture
Manufacturing, Inc.

Sara N. Benjamin, Trademark Examining Attorney, Law Office 110 (Chris A.F.
Pedersen, Managing Attorney).
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Before Seeherman, Mermelstein and Kuczma, Administrative Trademark Judges.

Opinion by Kuczma, Administrative Trademark Judge:
Applicant, Vermont Juvenile Furniture Manufacturing, Inc., a/k/a Pet Gear,
Inc., appeals from a final refusal to register the standard character mark:
I-GO2
as set forth in an intent-to-use application filed pursuant to § 1(b) of the Trademark
Act, 15 U.S.C. § 1051(b), for the following goods, as amended:
multi-functional animal carrier, not made of leather, that
may be converted into an animal carrier worn on the
body, a wheeled animal carrier, a tote bag for use as an
animal carrier, or a car and booster seat for animals in
Class 18.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77313684

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The examining attorney issued a final refusal to register the mark pursuant
to § 2(d) of the Trademark Act, 15 U.S.C. § 2(d), citing Registration No. 3500320,1
owned by Go2 Media, Inc., as a bar to registration.
Registration No. 3500320 is for the mark GO2 in typed form2 for goods in
Classes 18, 20, 25 and 28, and services in Class 35, including the following goods in
Class 18, which the examining attorney has identified as the basis for the citation:
Leather bags, namely, all purpose athletic bags,
backpacks, duffel bags, beach bags, book bags, overnight
bags, tote bags, travel bags, briefcases, business card
cases, and luggage.
After the trademark examining attorney made the refusal final, applicant
appealed to this Board. We affirm the refusal to register.
Likelihood of Confusion
Our determination of likelihood of confusion under § 2(d) is based on an
analysis of all of the probative facts in evidence that are relevant to the factors
bearing on the 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).

1 Registration No. 3500320 issued September 9, 2008.
2 In 2003, Trademark Rule 2.52(a) was amended to refer to “typed” drawings as “standard
character” drawings. See Trademark Rule 2.52(a); 37 C.F.R. § 2.52(a); TMEP § 807.03(i).

Serial No. 77313684

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In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the goods and/or
services. Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ
24, 29 (CCPA 1976).
A. The similarity or dissimilarity and nature of the goods, channels of trade and
classes of consumers
We first consider the du Pont factor involving the similarity or dissimilarity
of applicant’s goods (multi-functional animal carrier, not made of leather that may
be converted to inter alia a tote bag for use as an animal carrier), in relation to the
goods in the cited registration (various leather bags including tote bags). It is well-
settled that the issue of likelihood of confusion between applied-for and registered
marks must be determined on the basis of the goods as they are identified in the
involved application and registration. Paula Payne Products Co. v. Johnson
Publishing Co., Inc., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973).
The examining attorney submitted copies of several third-party registrations
that serve to suggest applicant’s multi-functional animal carrier and registrant’s
leather bags are of a kind that may emanate from a single source.3 Specifically,
there are fifteen current registrations, based on use in commerce and owned by
different owners, which show that third parties have adopted a single mark for both
the goods listed in applicant’s application and at least some of the goods listed in

3 The third-party registrations submitted by the examining attorney were attached to the
January 28, 2009 Office Action and the July 30, 2009 Final Office Action. Some of the
third-party registrations are no longer in force and, accordingly, have not been considered.
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the cited registration.4 We note that a likelihood of confusion may be found with
respect to a particular class based on any product within the identification of goods
for that class. See In re Wacker Neuson SE, 97 USPQ2d 1408, 1409 (TTAB 2010),
citing Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ
986, 988 (CCPA 1981). In other words, if confusion is likely between one of the
goods in a class of an applicant’s application and one of the goods in a cited
registration, likelihood of confusion must be found with respect to the entire class.
Although such third-party registrations are not evidence that the marks
shown therein are in use or that the public is familiar with them, they nonetheless
have probative value to the extent they are based on use in commerce and serve to
suggest that the goods identified therein are of a kind which may emanate from a
single source under a single mark, i.e., that it is common for the same entity to
provide bags, such as tote bags, and animal carriers under the same mark. See In
re Davey Products Pty Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009); and In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). Thus, consumers
encountering applicant’s animal carrier tote bag and the cited registrant’s tote bags
sold under similar marks are likely to believe the goods emanate from the same
source.

4 See Registration Nos. 2387121; 2925464; 3034203; 3061515; 3120497; 3163157; 3257129;
3327861; 3342117; 3359176; 3463356; 3493919; 3496655; 3584593; and 3659412. Three of
these registrations —Registration Nos. 3034203, 3493919 and 3659412— include tote bags
and animal carriers, made of leather and/or imitation leather.
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Given the relationship between bags, including tote bags, and animal carriers
established by the third-party registrations, the du Pont factor of the similarity of
the goods favors a likelihood of confusion. Further, because the bags identified in
the cited registration would be purchased by the general public, including pet
owners, at least some of registrant’s customers are part of the general consuming
public for applicant’s animal carriers. Thus, registrant’s customers who may be
interested in purchasing an animal carrier, upon viewing applicant’s I-GO2 animal
carriers that can be converted into inter alia a tote bag for use as an animal carrier,
may assume that applicant’s goods emanate from the same source as registrant’s
goods. To the extent that applicant’s and registrant’s respective animal carriers
and leather bags are offered to the general consuming public, the classes of
purchasers overlap. This overlap also weighs in favor of a finding of likelihood of
confusion, under du Pont. In re Wilson, 57 USPQ2d 1863, 1866 (TTAB 2001).
B. The similarity or dissimilarity of the marks as to appearance/sound/meaning
and commercial impression
We turn next to the du Pont factor focusing on the similarity or dissimilarity
of the marks in their entireties as to appearance, sound, meaning and commercial
impression. du Pont, 177 USPQ at 567.
When considering the similarity of the marks, the test is not whether the
marks can be distinguished when subjected to a side-by-side comparison, but rather
whether the marks are sufficiently similar in terms of overall commercial
impression so that confusion as to the source of the goods or services offered under
the respective marks is likely to result. San Fernando Electric Mfg. Co. v. JFD
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Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); In re
SL&E Training Stable Inc., 88 USPQ2d 1216, 1219 (TTAB 2008).
Because applicant’s mark and registrant’s mark both contain the identical
term GO2, when comparing the marks in their entireties, they are similar in
pronunciation and appearance. See In re Kent-Gamebore Corp., 59 USPQ2d 1373,
1374 (TTAB 2001) (IMPACT and HI-IMPACT marks “look and sound alike due to
shared word IMPACT, with the additional prefix ‘HI’ being physically connected by
a hyphen to the dominant term IMPACT”). The additional element “I” in
applicant’s mark is insufficient to distinguish the marks.
Turning to the meaning and commercial impression of the marks, we note
that the meaning of the term GO2 in the marks is not impacted by the nature of the
respective goods. Although there are multiple meanings that can be associated with
the numeral “2” in the term GO2, i.e., “two,” “to” or “too,” given the overall
similarity of the marks and the relatedness of the goods, the meaning of “2” in both
marks would be the same, whether viewed as “to” or “too.” Thus, the marks would
be understood as having the same meaning and commercial impression.
Applicant contends the marks have different meanings and commercial
impressions, arguing that the impression created by its mark is “I want to go too”
which is suggestive of the pet being the “I” in its I-GO2 mark. In other words, the
pet is going along or travelling with the pet owner in applicant’s I-GO2 animal
carrier. Applicant argues that registrant’s mark, on the other hand, creates a
suggestion of directing someone to a person, i.e., “a go to person,” or a place, such as
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a website.5 Although this meaning is possible, there is nothing about the nature of
the registrant’s goods that would suggest that this is the meaning that consumers
would ascribe to the mark. Certainly, the “2” in the registrant’s mark can easily be
understood as “also,” in the same way that the “2” could be understood in
applicant’s mark. The “2” could also be viewed as “to” in both marks, indicating
that the person or pet is going to a place. Again, viewed in this manner, the marks
would convey essentially the same meaning.
Contrary to applicant’s argument, the addition of the initial letter “I” in
applicant’s mark does not alter the meaning or commercial impression of its mark,
or otherwise avoid its similarity with registrant’s mark. To the extent that
purchasers notice the differences in the marks, they are likely to believe that
applicant’s mark with the additional letter “I” is a version of registrant’s mark or
represents a product line extension by registrant. Thus, the marks have similar
meanings and commercial impressions such that the addition of the letter “I” in
applicant’s mark does not avoid the likelihood of confusion between the marks.
Where the goods of the applicant and cited registrant are similar and/or
closely related as they are in this case, the degree of similarity between the marks
required to support a finding of likelihood of confusion is not as great as would be
required with diverse goods. In re J.M. Originals Inc., 6 USPQ2d 1393, 1394 (TTAB
1987); also see Shen Mfg. Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 73 USPQ2d 1350,

5 See Applicant’s Appeal Brief pp. 5-6 and Applicant’s Reply Brief p. 2.
Serial No. 77313684

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1354 (Fed. Cir. 2004). Here, the marks are similar in sound, sight, meaning and
commercial impression, and considering the relevant du Pont factors, we find that
the Office has met its burden in showing a likelihood of confusion.

Decision: The refusal to register the mark under § 2(d) of the Trademark Act is
affirmed.