Wednesday, September 20, 2006

No Joy in Mudville: TTAB Affirms "GOLDEN GLOVE" 2(d) Refusal

PTO Examining Attorney Katherine Stoides hurled a shutout in a one-sided TTAB affair that saw the Board affirm a Section 2(d) refusal to register the mark GOLDEN GLOVE for "baseball gloves for Little League baseball players." The Board not surprisingly found the mark likely to cause confusion with the registered mark GOLD GLOVE for "baseball gloves and mitts." Just for good measure, the Board also affirmed a requirement that Applicant disclaim the word GLOVE. In re Millersport, Inc., Serial No. 76590093 (August 28, 2006) [not citable].

Applicant contended that a disclaimer was not necessary because GOLDEN GLOVE is a "unitary two-word sequence" of an adjective and a noun, and because use of "glove" in the singular is and "incongruity" for goods consisting of gloves (plural). The Board disagreed: it saw nothing incongruous about the combination, and found no reason to consider the terms GOLDEN and GLOVE inseparable. [TTABLog query: Should Applicant have argued that "Golden Glove" evokes the amateur boxing competition and therefore would be perceived as a unitary term? Or is that mixing apples with oranges?]

Turning to the 2(d) refusal, the Board readily found the marks to be substantially similar. As to the goods, Applicant hopelessly argued that the goods are different because Registrant Rawlings' gloves are sold to adults, whereas Applicant's gloves are sold to Little Leaguers. Of course, that Board shot down that argument, pointing out for the millionth time that its 2(d) determination is based on the goods as identified in the Registration rather than "what the evidence shows the goods or services actually are." Here, Registrant's goods are not limited to "adult" gloves.

Without working up a sweat, the Board affirmed the refusal to register and the disclaimer requirement.

TTABlog comment: One wonders whether this Applicant really thought it had a snowball's chance in Tampa Bay of overturning this refusal. Applicant's initial brief barely reached four pages, and its reply comprised two pages. I suppose the appeal didn't cost much, but even so, was it worth it?

Text Copyright John L. Welch 2006.


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