Wright & McGill Co.v.Gerald A. Basden

Trademark Trial and Appeal Board

Sep 28, 2015

No. 91213795 (T.T.A.B. Sep. 28, 2015)

This Opinion is Not a Precedent of the TTAB Mailed: September 28, 2015 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Wright & McGill Co. v. Gerald A. Basden _____ Opposition No. 91213795 against Serial No. 85948314 _____ Miriam D. Trudell and Beth E. Cooperstein of Sheridan Ross PC, for Wright & McGill Co. Benjamin A. Balser and Charles S. Murray, Jr. of Balser & Grell IP for Gerald A. Basden. _____ Before Taylor, Lykos and Adlin, Administrative Trademark Judges. Opinion by Lykos, Administrative Trademark Judge: On June 1, 2013, Gerald A. Basden (“Applicant”) applied to register on the Principal Register the mark EAGLE CLAW in standard characters, for, as amended, “hand device worn in combination with a golf glove, namely, to lock your grip on the golf club and to strengthen and stabilize your grip for those with arthritis and hand injuries” in International Class 28.1 1 Application Serial No. 85948314, filed pursuant to Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), alleging March 1, 2012 as the date of first use anywhere and May 1, 2012 as the date of first use in commerce. The application was originally filed with the goods listed in International Class 8 and identified as “Hand tool, namely to lock your grip on the golf club and to strengthen and stabilize your grip for those with arthritis and hand Opposition No. 91213795 - 2 - Wright & McGill Co. (“Opposer”) opposes the registration of Applicant’s mark on the grounds of: (1) likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), with Opposer’s previously used and registered marks identified below; and (2) likelihood of dilution by blurring under Section 43(c) of the Trademark Act, 15 U.S.C. § 1125(c). Opposer also asserted a claim of fraud; however, insofar as Opposer has not argued this claim in its brief, in accordance with the Board’s usual practice, we find this claim to have been waived.2 See e.g., Knight Textile Corp. v. Jones Investment Co., 75 USPQ2d 1313, 1314 n.4 (TTAB 2005). In the notice of opposition, Opposer pleaded ownership of the following registrations: ● Registration No. 1888631 for the mark EAGLE CLAW (typed) on the Principal Register for “fishing tackle, namely, fishing line, bobber stops, leaders, swivels, sinkers, stringers, fish weighing scales, fish scalers, nets, fishing rod cases, fishing rod racks, tackle boxes, minnow buckets, pole bells, fishing creels, fishing satchels, fishing vests, fisherman pliers, scissors and clippers, reel oil, fillet boards and gloves, [ trolling bucket boom ] and lures” in International Class 28; Sections 8 and 15 affidavits accepted and acknowledged; renewed. ● Registration No. 1888632 for the mark EAGLE CLAW (typed) on the Principal Register for “fish hooks, snelled fish hooks, fishing rods, fishing reels, bobbers, floats and rigs” in International Class 28; Sections 8 and 15 affidavits accepted and acknowledged; renewed. ● Registration No. 505204 EAGLE CLAW HOOKS (stylized) for “fish hooks and artificial lures” in International Class 28; Sections 8 and 15 affidavits accepted and acknowledged; renewed. injuries.” Pursuant to an Examiner’s Amendment dated September 16, 2013, the description of the goods and classification were amended as noted above. 2 Opposer is reminded that under the doctrine of res judicata, claims based on the same transactional facts as a prior claim in which a final judgment has been rendered and which should have been litigated in the earlier case are barred from a subsequent suit. See Sharp Kabushiki Kaisha v. Thinksharp, Inc., 448 F.3d 1368, 79 USPQ2d 1376, 1378 (Fed. Cir. 2006). Opposition No. 91213795 - 3 - In his answer, Applicant denied the salient allegations therein and asserted various affirmative and putative defenses.3 The case is now fully briefed.4 Opposer, as plaintiff in this proceeding, bears the burden of establishing its standing, Section 2(d) and dilution claims by a preponderance of the evidence. I. The Record5 The record includes the pleadings, and pursuant to Trademark Rule 2.122(b), Applicant’s application file. The parties stipulated in writing to the submission of their own written responses to interrogatories, requests for admissions and requests for documents and things via notice of reliance.6 See Trademark Trial and Appeal 3 In addition, Applicant asserted the “affirmative defense” of failure to state a claim upon which relief may be granted. Insofar as Applicant neither filed a formal motion to dismiss pursuant to Fed R. Civ. P. 12(b)(6) during the interlocutory phase of this proceeding, nor argued this asserted affirmative defense in his brief, it is waived. See Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1753 n.5 (TTAB 2013) 4 Opposer has moved to strike Applicant’s appeal brief as untimely. According to the trial schedule and Trademark Rules of Practice, Applicant’s brief was due June 22, 2015 but was filed two days late. The length of the delay in filing the brief was inconsequential. Further, we see no prejudice to Opposer in considering the brief. For these reasons we deny Opposer’s motion to strike and have considered Applicant’s brief. See Fed. R. Civ. P. 6(b)(1)(B). See also Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380 (1993) and Pumpkin Ltd. v. The Seed Corps, 43 USPQ2d 1582 (TTAB 1997) (adoption of Supreme Court’s excusable neglect analysis set forth in Pioneer, 507 U.S. at 393-95). In addition, we note that Opposer has attached to its reply brief numerous exhibits comprised of evidentiary material. The evidence that was not properly made of record during Opposer’s assigned testimony periods is untimely and accordingly has not been considered. See e.g., Lincoln National Corp. v. Anderson, 110 USPQ2d 1271, 1274 n.5 (TTAB 2014). 5 Citations to the record throughout the decision include references to TTABVUE. The number preceding “TTABVUE” corresponds to the docket entry number; the number(s) following “TTABVUE” refer to the page number(s) of that particular docket entry. Portions of the record have been designated confidential and have been treated as such. All citations to the record refer to the redacted, publicly available versions of each submission. 6 The parties’ stipulation, approved by the Board on September 23, 2015, states the following: Opposition No. 91213795 - 4 - Board Manual of Procedure (“TBMP”) § 702.04(e) (2015) (“Utilizing Stipulations in non-ACR Board cases”) and cases cited therein. Opposer took no testimony but submitted notices of reliance on the following: ● Printouts showing the status and title of its pleaded Registration Nos. 505204, 1888631, and 1888632 obtained from the USPTO Trademark Status and Document Retrieval (“TSDR”) database (Exs. A.1, A.2, A.3). ● Applicant’s answers to Opposer’s first set of interrogatories and first set of requests for admissions7 (Exs. B.1 and B.2). ● Copies of fifty (50) third-party registration certificates for trademarks registered in International Class 28 for both fishing and golfing products (Exs. C.1 -C.50).8 ● Printouts from third-party websites advertising fishing and golfing outings by the same provider (Exs. D.1-D.10) and retailers that sell both golfing and fishing equipment (Exs. D.11-D.18); printouts from both Applicant’s and Opposer’s respective websites displaying the EAGLE CLAW mark and products (Exs. D.19-D.20); printouts from retailers that sell fishing gloves (Ex. D.21). [T]he parties may make their own interrogatory responses, their own responses to requests for admissions and their own responses to requests for documents and things of record … by the party filing the discovery response, together with a copy of the discovery request, via a Notice of Reliance during the party’s testimony period. We observe that subject to certain exceptions, ordinarily only the inquiring party is permitted to make an answer to an interrogatory or admission to a request for admission part of the record. Trademark Rule 2.120(j). In addition, documents produced in response to a document production request generally cannot be submitted under notice of reliance unless the document is otherwise admissible as a printed publication under Trademark Rules 2.120(j)(3)(ii) and 2.122(e). However, because the parties expressly stipulated to their admission, the materials are properly of record. 7 In general denials of requests for admission cannot be submitted under notice of reliance. Trademark Rule 2.120(j)(3)(i). See e.g., Life Zone Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1957 (TTAB 2008). Here, however, the parties stipulated to their submission. That being said, a denial to a request for admission is of little, if any, probative value because it establishes neither the truth nor falsity of the assertion, but rather leaves the proof for trial. Id. at 1957, n.10. 8 We have not considered Registration Nos. 3438013 and 3490332 which were cancelled for failure to file Section 8 affidavits. In addition, we note that Registration No. 3765417 does not appear to include goods related to those identified in the involved application and registrations. Opposition No. 91213795 - 5 - ● Excerpts from printed publications targeted to both fishing and golfing enthusiasts (Exs. E.1 - E.8) and discussing Opposer’s EAGLE CLAW mark and branded products (Exs. E.9- E.23). ● Pursuant to a stipulation by the parties, certain of Opposer’s responses to Applicant’s first set of interrogatories (Exs. F.1 and F.2). Applicant likewise did not take testimony but submitted notices of reliance on the following documents: ● Pursuant to the parties’ stipulation, Applicant’s verification page to his interrogatory responses (Ex. A). ● Certain of Opposer’s responses to Applicant’s first set of interrogatories (Ex. B) (designated confidential). ● Printouts from third-party websites showing use of the mark EAGLE CLAW (Ex. C). ● Pursuant to the parties’ stipulation, a document produced by Applicant in response to Opposer’s requests for documents and things (Ex. D). II. Standing Because Opposer has properly made its pleaded registrations of record, Opposer has established its standing to oppose registration of Applicant’s mark. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842 (Fed. Cir. 2000); and Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982). III. Section 2(d) Claim We will now consider Opposer’s Section 2(d) claim, focusing on Opposer’s registered mark EAGLE CLAW for the goods identified in Registration Nos. 1888631 and 1888632. This is because when that mark is considered vis-à-vis the applied-for mark and identified goods, it is most likely to support a finding of Opposition No. 91213795 - 6 - likelihood of confusion. In other words, if confusion is likely between these marks, there is no need for us to consider the likelihood of confusion with Opposer’s other pleaded mark EAGLE CLAW HOOKS. Conversely, if there is no likelihood of confusion between Applicant's mark and Opposer’s EAGLE CLAW mark, then there would be no likelihood of confusion with Opposer’s other pleaded mark. See, e.g., In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010). A. Priority With regard to Opposer’s mark EAGLE CLAW, priority is not in issue in view of Opposer’s ownership of valid and subsisting registrations for the goods identified therein. See King Candy, Inc. v. Eunice King's Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974). B. Likelihood of Confusion We base our determination under Section 2(d) on an analysis of all of the probative evidence of record bearing on a likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“du Pont”). See also, In re Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). “Not all of the du Pont factors are relevant to every case, and only factors of significance to the particular mark need be considered.” In re Mighty Leaf Tea, 601 F.3d 1342, 1346, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010). For example, the Board can “focus … on dispositive factors, such as similarity of the marks and relatedness of the goods.” Herbko Int'l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002) (citation omitted). These factors, and the other relevant du Pont factors are discussed below. Opposition No. 91213795 - 7 - 1. The Marks We begin with the du Pont likelihood of confusion factor regarding the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. See Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). It is undisputed that the marks are identical in how they look and sound. Indeed, because Applicant’s mark is in standard characters and Opposer’s registered marks are in typed format,9 they could conceivably be used in the same stylized format. See Trademark Rule 2.52(a). See also Trademark Manual of Examining Procedure (“TMEP”) § 807.03(a) (July 2015) (“If the applicant files an application on paper that includes a standard character claim, the applicant may depict the mark in any font or style; may use bold or italicized letters; and may use both uppercase and lowercase letters, all uppercase letters, or all lowercase letters, since no claim is made to any particular font style, size, or color.”) (emphasis in original). Nonetheless, Applicant argues that the connotation of the marks is dissimilar when considered in relation to the respective goods, contending that in the sport of golf, an “eagle” is a score equal to two strokes under par on a given hole. See Opposer’s Notice of Reliance, Ex. B-1, Answer to Interrogatory No. 6; 8 9 Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings. The mark on a typed drawing had to be typed entirely in capital letters. A typed mark is the legal equivalent of a standard character mark. TMEP § 807.03(i) (July 2015). Opposition No. 91213795 - 8 - TTABVUE 44. Applicant therefore contends that consumers encountering Applicant’s products will perceive the mark differently.10 To some extent, we agree with Applicant that the mark EAGLE CLAW when used in connection with its goods may connote and create the commercial impression of strengthening a golfer’s grip to allow a better stroke to score an “eagle.” We also acknowledge that the same mark used in connection with Opposer’s goods identified as “fishing lures” connotes a bird of prey. That being said, the marks are identical in sound and appearance, and Applicant’s mark EAGLE CLAW when considered in relation to its goods still also retains the connotation of the “claw” of an “eagle,” a bird of prey known for its strength.11 This is especially true given the stated purpose of Applicant’s goods as identified in the application of increasing grip strength. 10 Opposer urges the Board to consider both Opposer’s and Applicant’s use of their respective marks with designs and imagery of eagles. Opposer’s Brief, p. 17; 12 TTABVUE 18. Insofar as the Board’s jurisdiction is limited to the issue of registrability of a mark, not use, and the marks in the parties’ drawings do not contain eagle designs, we have not considered this evidence in making our determination. 11 We take judicial notice of the following dictionary definitions: eagle noun 1. : any of various large diurnal birds of prey (family Accipitridae) noted for their strength, size, keenness of vision, and powers of flight … 4. : a golf score of two strokes less than par on a hole - compare birdie claw noun 1. : a sharp usually slender and curved nail on the toe of an animal Source: www.merriam-webster.com. The Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014); Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010). See also Fed. R. Civ. P. 201(b) (“Judicial Notice of Adjudicative Facts”); Trademark Rule 2.122(a). Opposition No. 91213795 - 9 - We therefore find that Opposer’s marks and Applicant’s mark are similar in appearance and sound. This first du Pont factor weighs in favor of finding a likelihood of confusion. 2. Fame of the Prior Mark We now consider the fifth du Pont factor of the fame of Opposer’s EAGLE CLAW mark. Fame, if it exists, of the prior mark plays a dominant role in a likelihood of confusion analysis. Bose Corp. v. QSC Audio Products Inc., 293 F.3d 1367, 63 USPQ2d 1303 (Fed. Cir. 2002); Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894 (Fed. Cir. 2000). Fame for likelihood of confusion purposes and fame for dilution purposes are distinct concepts. See Palm Bay, 73 USPQ2d at 1692. Unlike dilution, fame for likelihood of confusion does not require the opposer to show fame among every segment of the U.S. population. Rather, fame for likelihood of confusion purposes arises as long as a “significant portion of the relevant consuming public ... recognizes the mark as a source indicator.” Id. at 1694. Fame for likelihood of confusion purposes may be measured indirectly by the volume of sales and advertising expenditures of the goods sold under the mark, for example, and other factors such as length of time of use of the mark; widespread critical assessments; notice by independent sources of the products identified by the marks; and the general reputation of the products or services. Bose Corp., 63 USPQ2d at 1308. Because of the wide latitude of legal protection a famous mark receives, and the dominant role fame plays in the likelihood of confusion analysis, it is the duty of the party asserting fame to clearly prove it. Lacoste Alligator S.A. v. Maxoly Inc., 91 Opposition No. 91213795 - 10 - USPQ2d 1594, 1597 (TTAB 2009); Leading Jewelers Guild Inc. v. LJOW Holdings LLC, 82 USPQ2d 1901, 1904 (TTAB 2007). Opposer argues that its EAGLE CLAW mark is famous based on over 90 years of continuous use and high volume of sales. Opposer specifically relies on its answers to certain of Applicant’s interrogatories namely that it has sold “millions” of EAGLE CLAW branded products each year. Opposer also points to accolades from publications such as Outdoor Life Magazine, The Denver Business Journal and Standard Times, a Texas newspaper. See Opposer’s Notice of Reliance, Exs. E.10 to E.20; 8 TTABVUE 387-442. Opposer’s evidence falls short of establishing Opposer’s EAGLE CLAW mark as famous for likelihood of confusion purposes. The instances of unsolicited media recognition, without more, are insufficient to support Opposer’s assertion that its fishing gear sold under the EAGLE CLAW mark enjoys wide brand name recognition among consumers. Notably, Opposer failed to submit specific evidence regarding U.S. annual sales by dollar amount and volume or advertising expenditures, evidence typically submitted by plaintiffs seeking to prove fame under Trademark Act Section 2(d). The mere assertion of sales in the “millions” annually in its interrogatory response, in the absence of documentary evidence or corroborating testimony, is insufficient. Thus, on the record before us, we cannot find Opposer’s mark to be famous and therefore deem this du Pont factor as neutral.12 12 Although we have not found evidence of fame, Opposer’s mark by its very nature is relatively strong. See discussion, infra, “Third-Party Uses.” Opposition No. 91213795 - 11 - 3. The Goods The next step in our analysis is a comparison of the goods identified in Applicant’s application vis-à-vis the goods identified in Opposer’s pleaded registrations. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). See also, Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002). We bear in mind that where identical marks are involved, as is the case here, the degree of similarity between the goods that is required to support a finding of likelihood of confusion declines. In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688-89 (Fed. Cir. 1993); Time Warner Entertainment Co. v. Jones, 65 USPQ2d 1650 (TTAB 2002); and In re Opus One Inc., 60 USPQ2d 1812 (TTAB 2001). In arguing that Applicant’s and Opposer’s goods are related, Opposer urges the Board to rely upon the non-precedential opinion In re L.L. Bean, Inc., (Serial No. 78238339; TTAB December 5, 2005), an ex parte appeal, where the Board affirmed the Examining Attorney’s Section 2(d) refusal to register the same mark for “golf clubs” and “fishing rods and reels.” The Board, in determining that the goods in question were related commented that even sophisticated consumers would be confused as to source in light of the identical marks. We cannot rely on the Board’s determination in that case to make the same factual finding here that Applicant’s and Opposer’s goods are related. “[I]t is well established that each case … stands on its own facts, and prior decisions are of little value.” In re Quik-Print Copy Shop, Opposition No. 91213795 - 12 - Inc., 616 F.2d 523, 205 USPQ 505, 507 (CCPA 1980). In re L.L. Bean was a non- precedential decision in an ex parte appeal. While parties may cite to non- precedential opinions, they are not binding upon the Board. See TBMP § 101.03 (2015) and cases cited therein. Furthermore, in ex parte appeals, the Board generally adopts a “more permissive stance with respect to the admissibility and probative value of evidence” than it does in an inter partes proceeding. TBMP § 1208 (2015). Here, in this opposition proceeding, the burden is on Opposer to introduce evidence that the goods are related. We therefore look to the record to ascertain whether Opposer has shown that the parties’ goods are indeed related for likelihood of confusion purposes. As evidentiary support that the goods in question are related, Opposer made of record almost fifty third-party, use-based registrations for both fishing and golfing products such as golf gloves and golf clubs. Opposer’s Notice of Reliance, Exs. C.1 - C.50, 8 TTABVUE 68-153. We highlight the following third-party registrations because they include goods which closely approximate Applicant’s “hand device worn in combination with a golf glove, namely, to lock your grip on the golf club and to strengthen and stabilize your grip for those with arthritis and hand injuries” inasmuch as they perform the similar function of strengthening a golfer’s grip. The registrations also include some of Opposer’s goods: ● Reg. No. 2960361 for the mark HR HEARTY RISE on the Principal Register for “Fishing tackle, Fishing tackle boxes, Fishing tackle containers, Fishing creels, Fishing floats, Fishing rods, Fishing rod handles, Fishing rod holders, Fishing rod racks, Fishing hooks, Fishing reels, Artificial fishing bait, Artificial fishing lures, Artificial fishing worms, Fishing lure boxes, Hand-held fishing nets, Sportsman's fishing bags, Fishing lines, Fishing safety harness, Fishing sinkers, Hip guards for fishing, Golf bags, Golf balls, Golf clubs, Golf Opposition No. 91213795 - 13 - club heads, Golf club shafts, Golf irons, Head covers for golf clubs, Hand grips for golf clubs and golf gloves” in International Class 28; ● Reg. No. 3447836 for the mark A ANNEX and design on the Principal Register for, in relevant part, “… Golf accessory pouches; Golf bag covers; Golf bag pegs; Golf bag tags; Golf bags; Golf ball markers; Golf ball retrievers; Golf ball sleeves; Golf balls; Golf club bags; Golf club covers; Golf club grips; Golf club heads; Golf club inserts; Golf club shafts; Golf clubs; Golf flags; Golf gloves; Golf irons; Golf putter covers; Golf putters; Golf tee markers; Golf tees; Golf towel clips for attachment to golf bags; Golf training equipment, namely, a golf training cage; Grip tapes for golf clubs; Hand grips for golf clubs; …” and “Fishing fly boxes; Flying discs; Artificial fishing bait; Artificial fishing lures; Artificial fishing worms; Bite indicators; Bite sensors; Fish attractants; Fish hook removers; Fishing aid which sinks to the bottom of any body of water in which it is placed and stands vertically from the bottom with fish line attached a few inches from the hook intended to catch the fish; Fishing buoys; Fishing creels; Fishing equipment, namely, clamps for securing fishing equipment on body; Fishing equipment, namely, winging material for fishing jigs and streamers; Fishing flies; Fishing floats; Fishing gaffs; Fishing hooks; Fishing leaders; Fishing lines; Fishing lure boxes; Fishing lure parts; Fishing lures; Fishing lures, namely, leeches; Fishing lures, namely, plastic worms; Fishing lures, namely, spoons; Fishing plugs; Fishing pole holders worn on the body; Fishing reels; Fishing rod blanks; Fishing rod cases; Fishing rod handles; Fishing rod holders; Fishing rod racks; Fishing rods; Fishing safety harness; Fishing sinkers; Fishing spinners; Fishing tackle; Fishing tackle boxes; Fishing tackle containers; Fishing weights; Flies for use in fishing; Gut for fishing; Hand-held fishing nets; Hand-held fishing nets for sportsmen” in International Class 28; ● Reg. No. 3667292 for the mark GX (stylized) on the Principal Register for, in relevant part, “Golf bags; balls for golf; divot repair tools used as golf accessories; golf tee markers; golf gloves; golf clubs; grips for golf clubs; shafts for golf clubs; heads for golf clubs; bags for golf clubs; covers for golf clubs; golf tees; knee guards for athletic use; mascot dolls; playing balls; targets; ball bases for baseball; rackets; fitted grips for rackets; strings for rackets; caddie bags for golf clubs; cricket bags; rods for fishing; fishing sinkers; fishing tackle boxes; …” in International Class 28; and ● Reg. No. 3803688 for the mark WALIKI (standard character) for, in relevant part, “Fishing bait holder; Fishing buoys; Fishing creels; Fishing equipment, namely, clamps for securing fishing equipment on body; Fishing equipment, namely, winging material for fishing jigs and streamers; Fishing flies; Fishing floats; Fishing fly boxes; Fishing gaffs; Fishing hooks; Fishing leaders; Fishing lines; Fishing lure boxes; Fishing lure parts; Fishing lures; Fishing lures, namely, leeches; Fishing lures, namely, plastic worms; Fishing lures, Opposition No. 91213795 - 14 - namely, spoons; Fishing plugs; Fishing pole holders worn on the body; Fishing reels; Fishing rod blanks; Fishing rod cases; Fishing rod handles; Fishing rod holders; Fishing rod racks; Fishing rods; Fishing safety harness; Fishing sinkers; Fishing spinners; Fishing tackle; Fishing tackle boxes; Fishing tackle containers; Fishing tackle, namely, bobbers; Fishing weights” and “Golf accessory pouches; Golf accessory, namely, support for holding a golf club; Golf bag covers; Golf bag pegs; Golf bag tags; Golf bags; Golf bags with or without wheels; Golf ball markers; Golf ball retrievers; Golf ball sleeves; Golf balls; Golf club bags; Golf club covers; Golf club grips; Golf club heads; Golf club holders for use on a driving range or golf course; Golf club inserts; Golf club shafts; Golf club swing aids, namely, golf club balancing scales and scale parts thereof, to analyze, fit and/or make golf clubs; Golf clubs; Golf flags; Golf gloves; Golf irons; Golf putter covers; Golf putters; Golf tee markers; Golf tees; Golf towel clips for attachment to golf bags; Golf training equipment, namely, a golf training cage; Grip tapes for baseball bats; Grip tapes for golf clubs; Grip tapes for rackets” in International Class 28. As a general proposition, although third-party registrations alone are not evidence that the marks shown therein are in use or that the public is familiar with them, they nonetheless may have probative value to the extent they are based on use in commerce and may serve to suggest that the goods are of a kind that may emanate from a single source. See In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); and In re Mucky Duck Mustard Co., Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). The aforementioned third-party registrations are probative to the extent that they show that the same manufacturers produce and sell golf grips or gripping aids and fishing equipment and products under the same trademark. Applicant contends that his products are not related to Opposer’s because they consist of orthotic devices, not golf sporting equipment such as golf clubs, balls or tees. We, however, must consider Applicant’s goods as identified in the application, and nowhere does the application identify Applicant’s product as an orthotic device. Opposition No. 91213795 - 15 - Moreover, the identification of goods explicitly states that Applicant’s product is specifically designed for use with golf gloves and golf clubs. Accordingly, the second du Pont factor also weighs in favor of finding a likelihood of confusion. 4. The Trade Channels/Purchasers Next we consider the third and fourth du Pont factors - the similarity or dissimilarity of established, likely to continue trade channels and the conditions under which and buyers to whom sales are made. Because the identifications of goods in the involved application and registrations are unrestricted as to trade channels, we must presume that both parties’ products travel in the ordinary trade and distribution channels and will be marketed to the same potential consumers. See Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 1360-61, 56 USPQ2d 1351, 1354 (Fed. Cir. 2000) (“When the registration does not contain limitations describing a particular channel of trade or class of customer, the goods or services are assumed to travel in all normal channels of trade.”). See also In re Elbaum, 211 USPQ 639, 640 (TTAB 1981) (citing Kalart Co., Inc. v. Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139 (CCPA 1958)). Applicant argues that the ordinary trade channels for his goods are distinct because Applicant’s goods are sold only via Applicant’s own web site and other web sites dedicated to golfing equipment. The record shows that Applicant’s products are sold via online on sites such as Groupon, eBay under the category of sporting goods, and Arm Chair Champion. Given the wide variety of products sold on Groupon and eBay, we cannot say that this evidence suffices to show that that the ordinary trade channels for Applicant’s goods overlap with those for Opposer’s goods. Nonetheless, Opposition No. 91213795 - 16 - Applicant’s identification is unrestricted, and the record shows that the ordinary trade and distribution channels for golfing and fishing products are retail establishments such as Dick’s Sporting Goods and Walmart. Opposer’s Notice of Reliance No. 1, Exs. D11-D18; 8 TTABVUE 180-243. In addition, both parties’ goods may be encountered by the same prospective consumers. Opposer provided evidence showing that various third-parties offer both golfing and fishing outings, and that the same demographic enjoys both golf and fishing: ● Fish N Golf Florida provides “the most memorable and enjoyable outdoor experience by combining world-class fishing charter services and world-class golf experiences” (www.fishngolfflorida.com). ● Sasquatch Fly Fishing in Estes Park, Colorado and Griffin Fishing Charters in New Orleans, Louisiana offer combined golfing and fishing trip (www.sasquatchflyfishing.com/fish-and-golf.html). ● Kiawah Island Golf Resort in Charleston, South Carolina offers fishing expeditions (www.kiawahresort.com). ● Pilgrim’s Run Golf Club in Grand Rapids, Michigan offers fly fishing and golf packages. Opposer’s Notice of Reliance Ex. D.1-D.6; 8 TTABVUE 154-163. This evidence demonstrates overlapping consumers for Opposer’s and Applicant’s goods. Hence, the third and fourth du Pont factors, the relevant trade channels and classes of consumers, weigh in favor of finding a likelihood of confusion. 5. Third-Party Uses Next we consider the sixth du Pont factor, namely the number and nature of similar marks in use on similar goods. “The purpose of a defendant introducing third-party uses is to show that customers have become so conditioned by a plethora Opposition No. 91213795 - 17 - of such similar marks that customers have been educated to distinguish between different such marks on the bases of minute distinctions.” See Palm Bay, 73 USPQ2d at 1694. “[T]he strength of a mark is not a binary factor” and “varies along a spectrum from very strong to very weak.” Juice Generation, Inc. v. GS Enters. LLC, __ F.3d __, 115 USPQ2d 1671, 1675-76 (Fed. Cir. 2015) (internal citations omitted). “The weaker an opposer’s mark, the closer an applicant's mark can come without causing a likelihood of confusion and thereby invading what amounts to its comparatively narrower range of protection.” Id. at 1674 (internal citations omitted). Applicant argues that Opposer’s mark EAGLE CLAW is diluted and weak in connection with golfing products. In support thereof, Applicant has made of record five instances of third-party use of the mark EAGLE CLAW: ● The Eagle Claw branded motorcycle kick stand offered by Image Motorcycles Products (www.imagemotorcycle.com/eagletalonkickstand.shtml). ● Eagle Claw branded bicycle brake pads by Kool Stop (www.cambriabike.com). ● Eagle Claw Park, a camp ground in Alaska for motorcyclists, bicyclists and outdoor enthusiasts (www.thompsoneaglesclaw.com). ● Tap’s Eagle Claw branded grip strength trainer offered for sale on Amazon.com (www.amazon.com/Eagle-Claw-Grip-Strength-Trainer). ● Eagle Claw Catcher grip strength trainer in the United Kingdom available for sale and shipment to the United States (www.martialartshop.co.uk/training- equipment/eagle-claw-catcher-grip-trainer). Applicant’s Notice of Reliance, Exs. C.1-C.5; 10 TTABVUE 29. None of the evidence of third-party use is for any of Opposer’s goods. We therefore cannot find on the record presently before us that Opposer’s EAGLE CLAW mark is weak and diluted Opposition No. 91213795 - 18 - due to third-party use. To the contrary, given the at most suggestive nature of Opposer’s mark, on the spectrum of weak to strong, it is relatively strong. We therefore find that the sixth du Pont factor favors Opposer. 6. Actual Confusion and Contemporaneous Use Applicant contends that despite two and a half years of contemporaneous use, there is no evidence of actual confusion. A showing of actual confusion would of course be highly probative, if not conclusive, of a likelihood of confusion. The opposite is not true, however. The lack of evidence of actual confusion carries little weight. J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 144 USPQ 435, 438 (CCPA 1965). The issue before us is the likelihood of confusion, not actual confusion. Herbko Int’l Inc. v. Kappa Books Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002) (actual confusion not required). The absence of actual confusion is not probative unless it is accompanied by evidence demonstrating that in light of the parties’ actual business activities, confusion, if likely, would have occurred. See Cunningham, 55 USPQ2d at 1847. Given the short period of contemporaneous use at issue, we cannot find that the absence of evidence of actual confusion supports Applicant’s argument that confusion is not likely. These factors are neutral. 7. Balancing the du Pont Factors In the present case, the du Pont factors discussed above either favor Opposer or are neutral. Accordingly, we find that Opposer has proved its Section 2(d) claim by a preponderance of the evidence. Opposition No. 91213795 - 19 - IV. Likelihood of Dilution by Blurring We now consider Opposer’s dilution by blurring claim. The Trademark Act provides a cause of action for the dilution of famous marks. See Sections 13 and 43(c) of the Trademark Act, 15 U.S.C. §§ 1063 and 1125(c). Section 43(c) provides as follows: Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury. Opposer contends that Applicant’s applied-for mark will dilute the distinctiveness of Opposer’s marks. The Trademark Act defines dilution by blurring as follows: “[D]ilution by blurring” is association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark. Section 43(c)(2)(B) of the Trademark Act, 15 U.S.C. § 1125(c)(2)(B). “Dilution diminishes the ‘selling power that a distinctive mark or name with favorable associations has engendered for a product in the mind of the consuming public.’” Toro Co. v. ToroHead Inc., 61 USPQ2d 1164, 1182 (TTAB 2001) (internal citation omitted). Our primary reviewing court, the Court of Appeals for the Federal Circuit, has set forth the following four elements a plaintiff must prove in order to prevail on a claim of dilution by blurring in a Board proceeding: (1) that plaintiff owns a famous mark that is distinctive; Opposition No. 91213795 - 20 - (2) the defendant is using a mark in commerce that allegedly dilutes the plaintiff’s famous mark; (3) the defendant’s use of its mark began after the plaintiff's mark became famous; and (4) the defendant’s use of its mark is likely to cause dilution by blurring. Coach Services Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1723-24 (Fed. Cir. 2012). “A mark can acquire ‘sufficient public recognition and renown to be famous for purposes of likelihood of confusion without meeting the more stringent requirement for dilution fame.’” Id. at 1724 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1722 (TTAB 2007)). Where, as here, a mark is not proven famous for purposes of likelihood of confusion under Section 2(d), it will certainly not meet the higher threshold for fame required for dilution by blurring. In view thereof, we find that Opposer has not carried its burden of proof as to this critical element of its dilution by blurring claim. Decision: The opposition is sustained on Opposer’s Section 2(d) claim but dismissed as to the dilution by blurring claim.