Friday, January 18, 2008

TTAB Finds "OLD TIMER" and "OLD TIMERS' HOCKEY CHALLENGE" for Clothing Too Dissimilar, Reverses 2(d) Refusal

Old Timers games are usually slow, dragged-out affairs, but that's not the case if Judge Grendel is the referee. His six-page decision brought a quick and successful conclusion to the appeal of Taylor Brands from the PTO's Section 2(d) refusal of the mark OLD TIMER for various outdoor apparel items. The Board found the mark not confusingly similar to the mark shown immediately below, registered for various clothing items. In re Taylor Brands, LLC, Serial No. 78565933 (December 17, 2007) [not precedential].

The Board began its analysis with the second du Pont factor: the similarity of the goods. It didn't take long to find the goods identical in part, and otherwise closely related (except, perhaps, for Applicant's fishing waders).

Moreover, the Board presumed (as it must) that the goods move in the same, normal trade channels of trade to the same, normal classes of purchasers. Thus the third factor also pointed in favor of a finding of likelihood of confusion.

As to the fourth factor, the sophistication of the purchasers, that call too went against Applicant, since the involved clothing items include "ordinary, inexpensive goods purchased by ordinary consumers who would exercise only a normal degree of care in making their purchasing decisions."

With things looking bad for Applicant, the Board turned to the first du Pont factor, the similarity of the marks. Here, Applicant rallied for victory. The Board found that "the visual and aural differences which result from the presence of the design element and additional wording in the cited registered mark outweigh the similarity in appearance and sound which result from the present of OLD TIMER or OLDTIMERS' in the two marks."

The Board also found that the marks differ in connotation and overall commercial impression. The similarity of the words OLD TIMER and OLDTIMERS' is "greatly outweighed by the presence in the cited registered mark of the words HOCKEY CHALLENGE and the hockey puck design element."

"The cited registered mark specifically calls to mind a hockey game or exhibition featuring a reunion of once-active but now-retired former hockey players. The words OLD TIMER in applicant's mark have no such connotation (much less a specific connotation)."

Balancing all the du Pont factors, the Board found the marks "sufficiently dissimilar that no confusion is likely to result even in the marks are used on identical or closely related clothing items which may be purchased on impulse."

Text Copyright John L. Welch 2008.


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