Tuesday, July 27, 2010

TTAB Finds "GOLF SPORT" and "GOLFINO," both with Golfer Designs and both for Clothing, Confusingly Similar

The Board sustained a Section 2(d) opposition to registration of the mark GOLF SPORT & Design (shown below left) for various clothing items [GOLF disclaimed], finding it likely to cause confusion with the mark GOLFINO & Design (below right), both marks for various clothing items. Before you scoff at the ruling, however, you should know that pro se Applicant Gady Desler admitted (by failing to respond to Opposer's admission requests) that "Applicant’s Mark is virtually identical to Opposer’s Marks in sound, appearance, and meaning." Golfino AG v. Gady Desler, Opposition No. 91183317 (July 12, 2010) [not precedential].

The Board also found that "the design of the golfer in each mark is similar and that the design in applicant’s mark predominates over the descriptive wording GOLF SPORT." [I don't agree with that analysis - ed.]. Oh, and both marks begin with the word GOLF. [Yawn! - ed.]

In sum, the Board found the marks to be "similar in appearance, sound, connotation and commercial impression,"

Balancing the relevant du Pont factors, the Board found confusion likely.

TTABlog comment: Note that Plaintiff took its trial testimony by way of written questions, since its witness was located in Germany. Applicant did not file a notice of reliance, take testimony, or file a brief.

Also note that Opposer submitted a Declaration of its counsel, attesting to Applicant's failure to respond to Opposer's admission. Why is a declaration admissible at trial, I ask? Shouldn't Opposer have to submit testimony under oath? I could not find any Rule allowing such a declaration (absent a stipulation from the other side).

Text Copyright John L. Welch 2010.


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