David Lilenfeld Blog The intellectual property blog of David Lilenfeld

31May/16783

HAMMER for Skateboard Gear Confusingly Similar with HAMMER Jackets & Hats

By David Lilenfeld on May 31, 2016

The USPTO refused to register the trademark HAMMER for “Skateboarding clothing, headwear and footwear, namely, beanies; belts; footwear; hats; jackets and socks; pants; shirts; sweatshirts; [and] t-shirts” on the grounds that the trademark is likely to cause confusion under Section 2 (d) of the Trademark Act, 15 U.S.C. § 1052 (d) with the registered trademark HAMMER & Design for jackets and hats. Applicant asserted that the registrant’s goods are specific to the sport of bowling and furthermore that they are associated with the professional skateboarder, Jim Greco.

The Board conducted a likelihood of confusion analysis focusing on the similarities between the trademarks and the relatedness of the goods. The test used in In re E.I. du Pont de Nemours & C0., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) evaluates not whether the trademarks can be distinguished in a side-by-side comparison, but rather whether as a whole their commercial impressions are so similar that confusion is likely. The Board found the trademarks to be quite similar visually because they share a similar commercial impression and are phonetically identical.

Then the Board determined whether the degree of relatedness rises to the level that would mistakenly lead consumers to believe the goods come from the same source. The applicant’s goods, which include jackets and hats, overlap with the goods already registered; and even narrowing the applicant’s goods to skateboarding clothes they still fall within the scope of the registered goods. Applicant argued that its focus on skateboarding differentiates its goods from those of the registration, which are bowling clothes. The Board rejected this argument because there are no limitations in the registration so the goods are presumed to travel in all normal channels of trade to all customers. Accordingly, the Board found the goods and trade channels overlap, which lead to a likelihood of confusion.

Finally, applicant asserted the clothing industry has many HAMMER trademarks. Therefore, applicant’s trademark should be permitted to join the industry. Applicant cited five third-party registrations but nevertheless the Board found these five registered trademarks contain other matter that distinguishes them from the cited trademark. Applicant’s trademark does not include any of this other matter. The Board found this du Pont factor to be neutral because these five third-party registrations do not establish confusion among consumers.

In light of the similarity of the trademarks and the overlap and relatedness of the goods and overlapping trade channels, the Board finds in favor of likelihood of confusion. Therefore, the Board affirmed the refusal to register applicant’s trademark under Section 2 (d).

 

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