Test Your TTAB Judge-Ability: Is BLACK BELT for Ammunition Confusable with BLACK BELT for Pepper Spray?
The USPTO refused registration of the mark BLACK BELT for ammunition, finding a likelihood of confusion with the identical mark registered for pepper spray. Are the goods related for Section 2(d) purposes? Where do you think the examining attorney looked for evidence of relatedness? How do you think this came out? In re RA Brands, L.L.C., Serial No. 85721641 (September 23, 2014) [not precedential].
The Board first addressed a procedural issue: applicant included with its brief a substantial amount of evidence not previously submitted. The evidence consisted of webpages corresponding to excerpts that the examining attorney had made of record with his denial of applicant's request for reconsideration, after the appeal had been filed. Although evidence first submitted with an appellant's brief is usually rejected, the Board found applicant's expanded excerpts to be admissible, since "the Examining Attorney had the opportunity to consider the entire websites from which he submitted certain webpages, [and] there is no unfair surprise to him in our considering Applicant's evidence." Indeed, the Board observed, it would be unfair to applicant not to consider this evidence.
As to the marks, the Board found that BLACK BELT is not a strong mark because it is suggestive: "it conveys the idea of being able to defend oneself or being good at self-defense." [Hmmm, not very suggestive of ammunition or pepper spray in my book - ed.].
There was substantial evidence that the trade channels for the goods are the same: for example, the websites of Wal-Mart, Dick's Sporting Goods, and various firearm-oriented outlets offer both types of products.
As to the similarity of the goods, however, the evidence was weak. The examining attorney submitted a large number of third-party registrations in an attempt to show that the registrants had adopted a single mark for both ammunition and pepper spray. However, only one company (with several registrations) adopted a single mark for both types of goods. "The fact that one company has registered the same mark for both ammunition and pepper spray is insufficient to show that ammunition and pepper spray may emanate from a single source."
The examining attorney also argued that the goods are related because they are both used for self-defense and are complementary. The Board pointed out, however, that "simply because a term can be found to generally describe both goods does not necessarily make them related." [But it was enough to make the mark suggestive? - ed.]
The only evidence (a registration) that might show the goods to be complementary involved products for police and security personnel, and they would be sophisticated purchasers presumably familiar with the practices in the trade and likely to know that companies do not make both ammunition and pepper spray.
Therefore, despite the identity of the marks and channels of trade, the Board found that the PTO had failed to meet its burden of proof, and so it reversed the refusal.
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TTABlog note: To me, black belt suggests black shoes.
Text Copyright John L. Welch 2014.