Wildgame Innovations, LLC

Trademark Trial and Appeal Board

Jul 2, 2013

No. 85428377 (T.T.A.B. Jul. 2, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
July 2, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Wildgame Innovations, LLC
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Serial No. 85428377
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Blair B. Suire of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, LLP for
Wildgame Innovations, LLC.

Linda M. Estrada, Trademark Examining Attorney, Law Office 104 (Chris
Doninger, Managing Attorney).
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Before Quinn, Kuhlke and Adlin, Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:
Applicant, Wildgame Innovations, LLC, filed an application to register on the
Principal Register the mark SUPERNATURAL in standard characters for goods
identified as “hunting game calls,” in International Class 28. 1
Registration has been refused under Section 2(d) of the Trademark Act, 15
U.S.C. § 1052(d), on the ground that applicant’s mark, when used with its identified

1 Application Serial No. 85428377, filed on September 21, 2011, based on an 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).
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goods, so resembles the registered mark SUPERNATURALS in typed form2 for
“fishing lures,” in International Class 28,3 as to be likely to cause confusion, mistake
or deception.
When the refusal was made final, applicant appealed and briefs have been
filed.
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). See also In re Majestic Distilling Co.,
Inc., 315 F.3d 1311, 65 USPQ2d 1201 (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. See Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
Registrant’s mark SUPERNATURALS is the plural form of applicant’s mark
SUPERNATURAL, but the marks are otherwise identical “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 fact
that marks differ in appearance and sound to the extent that one is the plural form
of the other “does not amount to a material difference” in the marks. In re Belgrade
Shoe, 411 F.2d 1352, 162 USPQ 227, 227 (CCPA 1969); and In re Pix of America,

2 Prior to November 2, 2003, “standard character” drawings were known as “typed”
drawings.
3 Registration No. 1880763, issued on February 28, 1995, combined Section 8 and 15
declaration accepted and acknowledged, renewed.
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Inc., 225 USPQ 691, 692 (TTAB 1985) (the fact that one mark is in plural form is
“almost totally insignificant in terms of the likelihood of confusion of purchasers.”).
Thus, we turn to consider the du Pont factors of the relatedness of the goods
and channels of trade. We base our evaluation on the goods as they are identified in
the registration and application. In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531, 1534 (Fed. Cir. 1997). See also Hewlett-Packard Co. v. Packard
Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); and Octocom Systems,
Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Cir. 1990). It is settled that it is not necessary that the respective goods be identical
or even competitive in order to find that they are related for purposes of our
likelihood of confusion analysis. That is, the issue is not whether consumers would
confuse the goods themselves, but rather whether they would be confused as to the
source of the goods. See In re Rexel Inc., 223 USPQ 830 (TTAB 1984). The goods
need only be sufficiently related that consumers would be likely to assume, upon
encountering the goods under similar marks, that the goods originate from, are
sponsored or authorized by, or are otherwise connected to the same source. See In
re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir.
1984); and In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991). Finally, where the
marks are virtually identical the relationship between the goods need not be as
close to support a finding of likelihood of confusion as would be required in a case
where there are appreciable differences between the marks. In re Shell Oil Co., 992
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F.2d 1204, 26 USPQ2d 1687 (Fed. Cir. 1993); and In re Davey Prods. Pty Ltd., 92
USPQ2d 1198, 1202 (TTAB 2009).
The record establishes that applicant’s “hunting game calls” are related to
registrant’s “fishing lures.” The examining attorney has submitted several use-
based third-party registrations wherein applicant’s “hunting game calls” and
registrant’s “fishing lures” are registered under the same mark by the same source.
See, e.g., Reg. No. 3003261 for the mark FISH CHARM for, inter alia, fishing lures
and hunting game calls; Reg. No. 3719309 for the mark FIELD & STREAM 1871
FIELD TESTED GUIDE APPROVED for, inter alia, fishing lures and hunting
game calls; Reg. No. 3967084 for the mark WATERFOWL PRO for, inter alia,
hunting game calls and lures for hunting or fishing; Reg. No. 3926617 for the mark
BACK MOUNTAIN OUTDOOR PRODUCTS WE HUNT … THAT’S WHAT WE DO
for, inter alia, hunting game calls and lures for hunting or fishing; and Reg. No.
3142129 for the mark LODGE OUTFITTERS for, inter alia, hunting game calls and
fishing lures.4 These third-party registrations may serve to suggest that the goods
are of a type that may emanate from a single source. In re Anderson, 101 USPQ2d
1912, 1919 (TTAB 2012); TMEP § 1207.01(d)(iii). In addition, the examining
attorney submitted excerpts from several websites where fishing lures and hunting
game calls are sold under the same mark from the same source. See, e.g., Bass Pro
Shops (www.basspro.com); The Sportsman’s Guide (wwwsportsmansguide.com);

4 Office Action (December 2, 2011) pp. 3-17.
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GameCalls.Net (www.gamecalls.net); Oak Mountain Outfitters
(www.oakmountainoutfitters.com); and Cabela’s (www.cabelas.com).5
Applicant’s various arguments with respect to the goods, simply point out the
differences between the goods, and do not address the evidence of record showing
the related nature of these types of goods. In addition, applicant’s arguments
regarding its specific trade channels and marketing and registrant’s specific trade
channels and marketing ignore the well-established rule that when there are no
limitations as to channels of trade or classes of purchasers in the description of
goods in the application and cited registration, as we have here, it is presumed that
applicant’s and registrant’s goods move in all channels of trade normal for those
goods, and that they are available to all classes of purchasers for those goods. See
Paula Payne Products Co. v. Johnson Publishing Co., 473 F.2d 901, 177 USPQ 76
(CCPA 1973); Kalart Co. v. Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139 (CCPA
1958); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992). Such trade
channels include sporting goods stores. Moreover, both goods are for sporting
purposes and would be sold to those interested in hunting and fishing. Applicant
essentially argues that these are different consumers, i.e., hunters and fishermen,
contending that these goods are sold in separate sections of the stores. However,
the evidence of overlapping trade channels and that such goods come from the same
source show that hunters and fisherman may encounter applicant’s and registrant’s
goods in close proximity to each other, under virtually identical marks. Taking the
record as a whole we find ample support to conclude that the goods are sufficiently

5 Office Action (December 2, 2011) pp. 24-35 and Office Action (July 11, 2012) pp. 27-129.
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related and are offered in the same trade channels such that confusion is likely
when sold under a similar mark.
Finally, applicant argues without evidentiary support that hunters and
fishermen “in general are sophisticated purchasers.” While the purchase of such
goods would most likely involve a certain level of care, the record does not support a
finding that the conditions of sale would outweigh the other du Pont factors. As the
examining attorney correctly observed, even sophisticated purchasers are not
necessarily immune from source confusion. In re Cynosure, Inc., 90 USPQ2d 1644
(TTAB 2009); and In re Decombe, 9 USPQ2d 1812 (TTAB 1988).
In conclusion, because the marks are virtually identical, the goods are
related, and the channels of trade and consumers are the same or overlapping,
confusion is likely between applicant’s mark SUPERNATURAL and the mark
SUPERNATURALS in the cited registration.
Decision: The refusal to register based on a likelihood of confusion under
Section 2(d) of the Trademark Act is affirmed.