Zackary Henson

Trademark Trial and Appeal Board

May 14, 2018

No. 87130461 (T.T.A.B. May. 14, 2018)

Mailed: May 14, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Henson
_____
Serial No. 87130461
_____
Scott D. Swanson of Shaver & Swanson LLP
for Zackary Henson

Kyle D. Simcox, Trademark Examining Attorney, Law Office 122,
John Lincoski, Managing Attorney.
_____
Before Cataldo, Ritchie and Adlin,
Administrative Trademark Judges.

Opinion by Adlin, Administrative Trademark Judge:
Zackary Henson (“Applicant”) seeks registration of LYKAN, in standard
characters, for “athletic apparel, namely, shirts, pants, shorts, jackets, coats, hats,
caps, athletic uniforms, button-down shirts, graphic T-shirts, short-sleeved T-shirts,
long-sleeved T-shirts; microfiber performance shirts; women’s apparel, namely, tops,
jackets, coats, and pants; socks, underwear” in International Class 25.1 The
Examining Attorney refused registration under Section 2(d) of the Act, 15 U.S.C.
§ 1052(d), on the ground that Applicant’s mark so resembles an identical mark
(LYKAN in standard characters) registered for, inter alia, “watches” and “jewelry,”2

1 Application Serial No. 87130461, filed August 8, 2016 under Section 1(b) of the Trademark
Act, based on an alleged intent to use the mark in commerce.
2 Registration No. 4830340, issued October 13, 2015 under Section 44(e). The cited
This Opinion is Not a
Precedent of the TTAB
Serial No. 87130461
2
that use of Applicant’s mark in connection with Applicant’s goods is likely to cause
confusion. After the refusal became final, Applicant appealed and filed a request for
reconsideration which was denied. Applicant and the Examining Attorney filed
briefs.
I. Evidentiary Objection
The Examining Attorney objected to evidence attached to Applicant’s Appeal Brief
which was not previously made of record. The objection is sustained. Trademark Rule
2.142(d) (“The record in the application should be complete prior to the filing of an
appeal.”).
II. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record 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) (setting forth
factors to be considered); see also In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key

registration’s identification of goods in its entirety is: “Precious metals; precious metal alloys;
watches; chronographs for use as timepieces; clocks; stop watches; watch parts; watch straps;
watch bracelets; bracelets and watches combined; movements for clocks and watches; buckles
for watchstraps; watch crowns; watch cases; watch dials; clock dials; clock and watch hands;
watch glasses; watch springs; cases for watches and clocks; presentation cases for the display
of watches, jewelry, tie pins, and precious metal key fobs; precious stones and their
imitations; semi-precious stones; diamonds; jewellery; semi-precious articles of bijouterie in
the nature of jewelry; ornaments of precious metal in the nature of jewellery; fashion
jewellery; jewellery cases; boxes for cuff links, tie pins and precious metal key fobs; jewel
cases of precious metal; tie pins; cuff links; watch boxes; clock boxes; jewelry boxes; cases
adapted for containing and transporting watches, clocks and jewellery; chronometric
apparatus and instruments and cases therefor; key fobs of precious metal.” According to the
registration: “The word(s) ‘LYKAN’ has no meaning in a foreign language.”

Serial No. 87130461
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considerations are the similarities between the marks and the similarities between
the goods. See 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 Marks
The marks are identical in appearance and sound. There is no evidence of record
regarding the meaning of LYKAN in relation to Applicant’s or Registrant’s goods, nor
is there any evidence that the term would have a different meaning when used for
Applicant’s goods than when used for Registrant’s goods. The marks therefore also
convey the same meaning. As a result, this factor not only weighs heavily in favor of
finding a likelihood of confusion, but also reduces the degree of similarity between
the goods required to support a finding of likelihood of confusion. In re Shell Oil Co.,
992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993); Time Warner Ent. Co. v.
Jones, 65 USPQ2d 1650, 1661 (TTAB 2002); and In re Opus One Inc., 60 USPQ2d
1812, 1815 (TTAB 2001).
B. Strength of the Cited Mark
Applicant’s argument that the cited mark is weak is unavailing. Even if Applicant
established that LYKAN is a “common word,” and his evidence falls well short of
doing so, that would not be relevant. The question is whether it is commonly used for
the goods in the cited registration, or related goods. Century 21 Real Estate Corp. v.
Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992) (“The
relevant du Pont inquiry is ‘[t]he number and nature of similar marks in use on
Serial No. 87130461
4
similar goods’ … It is less relevant that ‘Century is used on unrelated goods or
services such as ‘Century Dental Centers’ or ‘Century Seafoods.’ The relevant inquiry
examines the number and nature of similar marks used for services similar to
insurance brokerage services. The paucity of service marks containing ‘Century’ in
businesses similar to insurance suggests that CENTURY 21 is indeed a unique mark
for insurance services.”) (quoting Weiss Assocs. V. HRL Assocs., 902 F.2d 1546, 14
USPQ2d 1840, 1842 (Fed. Cir. 1990)).
Here, there is no evidence of record that anyone other than perhaps Registrant
uses LYKAN or variations thereof for watches, jewelry or related goods. While
Applicant introduced evidence that the word “lycan” refers to a human who
transforms into a wolf, Office Action response of September 18, 2017 Ex. A (printout
from “differencebetween.net”), the mark in the cited registration is LYKAN, not
LYCAN. Thus, this evidence reveals nothing about the relative strength of LYKAN
for watches or jewelry.3 Applicant also relies on evidence that W Motors offers a $3.4
million, 750 horsepower “hypercar” (only seven of which will be produced) known as
the LYKAN HYPERSPORT.4 Office Action response of September 18, 2017 Exs. B
and F (printouts from “carscoops.com” and “wmotors.ae”). However, the use of
LYKAN for a “hypercar” is also irrelevant because there is no evidence that cars of
any type are related to watches or jewelry. Similarly, the use of “Lycan killer” for

3 Even if we were to find that these terms are pronounced similarly or even that they are
phonetic equivalents, there is no evidence that wolves, wearwolves or humans who transform
into wolves have any suggestive meaning when used for Registrant’s goods.
4 It appears from the record that Registrant has a partnership with W Motors pursuant to
which buyers of W Motors’s “hypercar” will receive Registrant’s LYKAN-branded watches.
Serial No. 87130461
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football shoes does not establish that the cited mark is weak, not only because “Lycan”
is not the mark in question, but also because there is no evidence that football shoes
are related to watches or jewelry. Office Action response of September 18, 2017 Ex. C
(printout from “pricedhamaka.com”).5 Overall, there is insufficient evidence that
third parties are using similar marks on related goods. Thus, this factor does not
detract from the likelihood of confusion between Applicant’s and Registrant’s
identical marks.
C. The Goods
The Examining Attorney has established that “women’s apparel” and “athletic
apparel” (included in Applicant’s identification of goods) on the one hand, and
“watches” and “jewelry” (included in Registrant’s identification of goods) on the other
hand, are sold under the same marks, including FOREVER 21, GUESS, MICHAEL
KORS, ATHLETA, NIKE, ASOS, ADIDAS, REEBOK, PUMA, NIXON, JUST
CAVALLI, ARVO and ROCKWELL. Office Actions of November 18, 2016 (printouts
from “forever21.com,” “guess.com,” “michaelkors.com,” “athleta.gap.com” and
“nike.com”), March 17, 2017 (printouts from “asos.com,” “adidas.com,” “reebok.com”
and “puma.com”) and October 11, 2017 (printouts from “nixon.com,” “justcavalli.com,”
“arvowear.com” and “rockwelltime.com”). For example:

5 The apparent use of LYCAN for a bicycle is irrelevant not only because it is a different mark
and there is no evidence that bicycles are related to Registrant’s goods, but also because there
is no evidence that these bicycles are offered or this mark is used in the United States. Office
Action response of September 18, 2017 Ex. D (printout from “ktm-bikes.at”). The evidence of
use of LYCAN for a baitcasting reel is also irrelevant because the mark is different than
Registrant’s and there is no evidence that the goods are related. Id. Ex. E (printout from
“aliexpress.com”).
Serial No. 87130461
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Serial No. 87130461
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Office Actions of November 18, 2016 (printout from “forever21.com”) and October 11,
2017 (printout from “arvowear.com”).
Furthermore, Applicant himself introduced several use-based third-party
registrations showing that the same marks are registered in connection with
Registrant’s goods (or goods encompassed thereby) on the one hand and Applicant’s
goods (or goods encompassed thereby) on the other. Office Action response of
September 18, 2017 Ex. H (registrations of ADIDAS, ATHLETA, FOREVER 21,
GUESS, MICHAEL KORS, NIKE and REEBOK). “Third-party registrations which
cover a number of differing goods and/or services, and which are based on use in
commerce, although not evidence that the marks shown therein are in use on a
commercial scale or that the public is familiar with them, may nevertheless have
some probative value to the extent that they may serve to suggest that such goods or
services are of a type which may emanate from a single source.” See, In re Mucky
Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1998).
As for the channels of trade, the Examining Attorney introduced evidence that
women’s clothing on the one hand and watches or jewelry on the other are sold via
the same retail stores and websites such as Macy’s, Anthropologie and Ann Taylor.
Office Actions of November 18, 2016 (printout from “macys.com”) and March 17, 2017
(printouts from “anthropologie.com” and “anntaylor.com”).
Applicant argues and introduces evidence that Registrant’s mark is used only in
association with watches offered to buyers of W Motors’s LYKAN HYPERSPORT
“hypercar.” Office Action response of September 18, 2017 Exs. B and F (printouts
Serial No. 87130461
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from “carscoops.com” and “wmotors.ae”). While this type of distinction may be
relevant in an infringement suit, or an inter partes case involving common law rights,
in this ex parte appeal we are concerned only with the goods as identified in the
involved application and cited registration.
The authority is legion that the question of registrability of
an applicant’s mark must be decided on the basis of the
identification of goods set forth in the application
regardless of what the record may reveal as to the
particular nature of an applicant’s goods, the particular
channels of trade or the class of purchasers to which sales
of the goods are directed. … Thus, it was not error, as OSI
argues, for the board to give no weight to OSI’s evidence
purporting to show that OCTOCOM modems are brought
[sic] by a particular class of purchasers. It would have been
error to do otherwise. Because OSI seeks an unrestricted
registration, such evidence as there is of a specific class of
customers did not relate to a material fact.

Octocom Syst. Inc. v. Hous. Computs. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990) (citations omitted). See also In re i.am.symbolic, LLC, 866 F.3d
1315, 123 USPQ2d 1744, 1748 (Fed. Cir. 2017) (“It is well established that the Board
may not read limitations into an unrestricted registration or application.”) (citing
SquirtCo v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983) and 15
U.S.C. § 1057(b)) and Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d
1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (“It was proper, however, for the Board
to focus on the application and registrations rather than on real-world conditions
….”). Here, the cited registration is for, inter alia, “watches” and “jewelry,” without
any limitations as to the type of watches or jewelry, number to be sold, price, quality,
etc. Any differences in the channels of trade for Registrant’s watches and jewelry and
Serial No. 87130461
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the watches and jewelry about which the Examining Attorney introduced evidence
are not reflected in Registrant’s identification of goods, and thus not relevant. Stone
Lion Capital, 110 USPQ2d at 1162 (“An application with ‘no restriction on trade
channels’ cannot be ‘narrowed by testimony that the applicant’s use is, in fact,
restricted to a particular class of purchasers.’”); Citigroup Inc. v. Capital City Bank
Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Jump
Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006); In re Elbaum, 211 USPQ 639,
640 (TTAB 1981).
Applicant also argues, and introduces some evidence, that much of the third-party
evidence showing use of the same marks for clothing on the one hand and watches or
jewelry on the other comes from “massive, global companies.” This argument “misses
the point.” Kabushiki Kaisha Hattori Seiko v. Satellite Int’l Ltd., 29 USPQ2d 1317
1319 (TTAB 1991), aff’d mem., 979 F.2d 216 (Fed. Cir. 1992). If anything, the
“massive, global” nature of these third parties enhances the persuasiveness of the
evidence, to the extent that it suggests that many of the marks used on both clothing
and watches or jewelry are heavily promoted, or that the goods sold thereunder enjoy
significant sales, which would tend to show that consumers are accustomed to the
same marks being used on both types of products. As we said in analogous
circumstances, the “failure to use SEIKO on shoes does not detract from the fact that
a number of other companies have used the same marks for both watches and shoes
and that purchasers have become accustomed to seeing the same marks on both types
of products. In other words, purchasers who are familiar with a particular mark for
Serial No. 87130461
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watches would not be surprised to see that mark on shoes.” Id.
Applicant’s focus on the international classes in which his and Registrant’s goods
reside is simply irrelevant. Jean Patou Inc. v. Theon Inc., 9 F.3d 971, 29 USPQ2d
1771, 1774 (Fed. Cir. 1993) (stating that classification is for the convenience of the
Office and “wholly irrelevant to the issue of registrability under section 1052(d),
which makes no reference to classification”).6 So too is the fact that some sources of
watches or jewelry do not also offer clothing under the same mark; the evidence
establishes that several sources, some of which are apparently “massive” and “global”
do so, and that many consumers are aware of this. Finally, Applicant’s argument that
the Examining Attorney is somehow creating a “per se rule” that watches and
clothing are related is belied by the record. The finding of a relationship is based not
on a “rule,” much less a “per se” rule, but on the evidence summarized above. These
factors therefore also weigh in favor of finding a likelihood of confusion.
III. Conclusion
The marks are identical in appearance, sound, meaning and overall commercial
impression. The evidence of record establishes that the goods are related, and that
their channels of trade overlap. We therefore find a likelihood of confusion between
Applicant’s mark LYKAN for women’s apparel and other clothing as identified in the

6 As the Examining Attorney points out, “[t]o require the registrant to have sought
registration in every class that could conceivably contain potentially related or confusingly
similar goods would impose an undue procedural and financial burden on the registrant ….”
10 TTABVUE 15.
Serial No. 87130461
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involved application, and Registrant’s identical mark for, inter alia, watches and
jewelry.

Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed.