Monday, April 25, 2005

Finding Dumbbells and Soccer Goals Unrelated, TTAB Reverses 2(d) Refusal

Having watched many soccer games, I can attest that soccer goals are occasionally scored by dumbbells, and thus soccer goals are (in a broad, sporting sense) not unrelated to dumbbells. But that wasn't quite the question before the TTAB in In re Hoist Fitness Systems, Inc., Serial No. 76428061 (March 30, 2005) [not citable]. The Board reversed a Section 2(d) refusal to register the mark QUIK-CHANGE for dumbbell systems, finding the mark not likely to cause confusion with the registered mark KWIK CHANGE for size-adjustable soccer goals.

QUIK-CHANGE dumbbell system

The Examining Attorney contended that the marks are virtually identical and the goods would be found in the "same sporting goods market" as registrant's soccer goals. She relied on third-party trademark registrations and applications that cover both exercise and soccer equipment, and on Internet search results for websites selling both types of goods.

Hoist Fitness
, in a feeble rejoinder, pointed out the obvious: "the marks are spelled differently" and the "equipment needed for playing soccer and weight training are very different."

KWIK CHANGE adjustable soccer goal

Fortunately for Hoist, the Board did the heavy lifting in this case. Although it agreed with the PTO that the marks have the same meaning and pronunciation, the Board noted that the cited mark is on the Supplemental Register:

"We, therefore, take into consideration the descriptiveness of the cited mark as well as the fact that applicant's mark is at least suggestive of the fact that its weights may be changed quickly."

Turning to the issue of relatedness of the goods, the Board pooh-poohed the PTO's third-party application and registration evidence. First, it pointed out that intent-to-use applications and non-use based registrations are not entitled to much weight. The most relevant registrations (WILSON, COLLEGIATE PACIFIC, and UNILETTE) are use based, but:

"these appear to be house marks. While they may show that there is some relationship between sporting goods, it hardly is evidence that goods as different as adjustable soccer goals and a dumbbell system are closely related."

As to the Internet excerpts, the Board found them "too cryptic to demonstrate that soccer and exercise equipment are related." Moreover, the evidence that soccer and exercise products are sold at the same websites like e-bay "does not show that consumers would expect the sources of these products to be associated or related."

"Websites like conventional stores often serve to bring together various products from unrelated sources. The mere fact that goods are sold in the same stores or on the same website does not establish that the goods are related, much less closely related."

In view of the "nature of the marks" and "the fact that the goods are not closely related," the Board concluded that confusion was not likely.

Text ©John L. Welch 2005. All Rights Reserved.


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