Wildgame Innovations, LLC

Trademark Trial and Appeal Board

Apr 9, 2013

No. 85136181 (T.T.A.B. Apr. 9, 2013)

Decision Mailed:
April 9, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Wildgame Innovations, LLC
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Serial No. 85136181
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Robert L. Waddell of Jones, Walker, Waechter, Poitevent, Carrere
& Denegre for Wildgame Innovations, LLC.

Courtney M. Alvarez, Trademark Examining Attorney,
Law Office 108 (Andrew Lawrence, Managing Attorney).
_______

Before Quinn, Wellington and Wolfson,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Wildgame Innovations, LLC (applicant) has filed an
application to register the mark BOOTIE CALL (in standard
character format) on the Principal Register for “hunting game
calls” in International Class 28.1 The term CALL has not been
disclaimed.2

1 Serial No. 85136181, filed on September 23, 2010, which alleges a
date of first use anywhere and in commerce of June 16, 2011.
2 The examining attorney presumably determined that the mark as a whole
is unitary or creates a “double entendre” and, appropriately so, did
not require a disclaimer of “call” despite this clearly being a
generic term for the identified goods. See TMEP Section 1213 (rev.
THIS OPINION IS
NOT A PRECEDENT
OF THE TTAB
Serial No. 85136181

2
Registration has been finally refused under Section 2(d) of
the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
applicant’s mark, when applied to its goods, so resembles the
mark BOOTY CALL (in standard character format) on the Principal
Register for “fishing tackle” in International Class 28,3 as to
be likely to cause confusion, or to cause mistake, or to deceive.
Applicant has appealed and briefs have been filed.
Our determination of likelihood of confusion is based on an
analysis of all of the probative facts in evidence that are
relevant to the factors set forth in In re E. I. du Pont de
Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (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,
however, two key considerations are the similarities between the
marks and the similarities between the goods and/or services.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976).
With respect to the marks, they are phonetic equivalents and
extremely similar visually.
As to connotation and commercial impression, applicant
contends that its mark will be understood differently by
consumers because its use of “bootie” conjures the “softness of a
baby’s knitted shoe” and is thus suggestive of the game call’s

October 2012); in particular, see Section 1213.05(c) (“Double
Entendre”).
3 Reg. No. 3901673, issued January 4, 2011.
Serial No. 85136181

3
soft features. Brief, p. 6. Applicant submitted the definition
of “bootie” as “a soft, usually knitted shoe for a baby” and
points to its advertising touting certain features of the game
call that are soft.
We are not persuaded by applicant’s argument. Rather, we
agree with the examining attorney in that both marks will be
understood by consumers as a play on the slang term “booty call,”
meaning “a phone call, text message, e-mail, etc., whose purpose
is to arrange a meeting to have casual sex.”4 This slang
reference is especially appropriate given both marks are being
used on goods that attract or “call” the intended target, whether
it be fish or wild game. Thus, in the context of hunting game
calls, we find it highly unlikely that consumers will associate
the term “bootie” with knitted baby shoes. Rather, viewing
applicant’s mark as a whole, it is far more likely consumers will
understand the mark in the nature of the aforementioned slang
term.
Any possible distinction between the marks based on
registrant’s use of “booty” versus applicant’s “bootie,” has
minimal significance. We must consider the reality that
consumers are seldom afforded the opportunity to compare the
marks alongside each other.
The test is not whether the marks can be distinguished when
subjected to a side-by-side comparison, but rather whether

4 The examining attorney attached a printout containing the defined
meaning from the online dictionary website, www.dictionary.com, with
the Office action issued on January 23, 2012.
Serial No. 85136181

4
the marks are sufficiently similar in terms of their overall
commercial impression that confusion as to the source of the
goods or services offered under the respective marks is
likely to result. The focus is on the recollection of the
average purchaser, who normally retains a general rather
than a specific impression of trademarks.

Baseball America Inc. v. Powerplay Sports Ltd., 71 USPQ2d 1844,
1848 (TTAB 2004). See also Grandpa Pidgeon's of Missouri, Inc.
v. Borgsmiller, 477 F.2d 586, 177 USPQ 573, 574 (CCPA 1973).
In this case, the consumer’s general recollection of applicant’s
mark is likely to be the same as that of registrant’s mark,
namely, a play on the slang expression “booty call.”
Because of the near identity of the marks, this du Pont
factor weighs strongly in favor of finding a likelihood of
confusion.
Insofar as the goods are concerned, if the marks are
identical or nearly so, as in the present case, it is only
necessary that there is a viable relation between the goods to
support a holding of likelihood of confusion. See In re Shell
Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993);
and In re Opus Wine Inc., 60 USPQ2d 1812, 1815 (TTAB 2001).
Upon review of the record, we conclude that applicant’s
hunting game calls are sufficiently related to fishing tackle.
As described and detailed by the examining attorney in her brief,
she previously submitted printouts from several online retail
websites featuring outdoors sporting goods that includes fishing
Serial No. 85136181

5
tackle and hunting game calls.5 A few of these websites, such as
Hunting Fishing Direct (www.huntingfishingdirect.com), are
specifically geared to selling goods for hunting and fishing.
Another retail website identifies a “hunting equipment & fishing”
as a separate drop-down menu category. See www.meijer.com. In
addition, the examining attorney submitted eight third-party
registrations for marks covering both fishing tackle and hunting
game calls to show that the same mark has been registered for
these goods. While these registrations are not evidence that the
marks are in use or that consumers are familiar with them, they
do suggest that applicant’s and registrant’s goods are of a type
that may emanate from a single source. See In re Albert Trostel
& Sons Co., 29 USPQ2d 1783 (TTAB 1993); In re Mucky Duck Mustard
Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988).
In sum, the evidence demonstrates that there is a sufficient
relationship between hunting game calls and fishing tackle.
Accordingly, this du Pont factor also weighs in favor of finding
a likelihood of confusion.
As to the trade channels and classes of purchasers,
applicant argues that the registrant sells its goods “to
fisherman in the cold weather climates of the northern part of
the United States” and that “applicant markets its hunting game
calls to hunters.” Brief, p. 7. Applicant also asserts that
there is a “division of products” and that this is reflected in

5 Attached to the Office actions dated July 11, 2011 and January 23,
Serial No. 85136181

6
the “consumers’ attitudes” to the extent that “hunters views
themselves as being different from fisherman and vice versa.”
Id. Applicant also suggests that consumers of both products are
“sophisticated.”
Applicant’s arguments are not well-taken. First, because
there are no restrictions or limitations in the identifications
of goods, we must presume the identified goods in the
registration as well as in the application are offered in all
channels of trade which would be normal therefor, and that they
would be purchased by all potential buyers thereof. In re
Elbaum, 211 USPQ 639, 640 (TTAB 1981). Furthermore, the cited
registration is unrestricted geographically and we must assume
registrant’s goods are sold nationally. Second, the record does
not support applicant’s argument that game hunters and fisherman
view themselves differently such that there would be less
likelihood of confusion when the respective products are being
sold under similar marks. In fact, the record tends to show that
hunting and fishing are related activities and there are third-
party retail websites specializing in the provision of hunting
and fishing supplies, including specifically hunting game calls
and fishing tackle. These websites will be visited by the same
consumers. Finally, there is insufficient evidence to support
applicant’s argument that the relevant consumers are

2012.
Serial No. 85136181

7
sophisticated or that the respective products are so expensive to
presume a higher degree of care in their purchasing decisions.
Accordingly, the du Pont factor involving trade channels
weighs in favor of finding a likelihood of confusion. The factor
involving classes of purchasers, or any sophistication thereof,
remains neutral.
We have considered all evidence of record as well as the
arguments put forth by applicant and the examining attorney.
Ultimately, we conclude that there is a likelihood of confusion
between applicant’s mark BOOTIE CALL on hunting game calls and
the registered mark BOOTY CALL on fishing tackle.
Decision: The refusal under Section 2(d) is affirmed.