TTABlog Test: Are Hockey Sticks Related to Sports Gloves Under Section 2(d)?

The USPTO refused to register the mark KINETIXX for "hockey sticks, hockey stick shafts and hockey stick blades," finding confusion likely with the mark shown below, registered for "Baseball gloves, batting gloves, bowling gloves, boxing gloves, fencing gloves, field hockey gloves, football gloves, archery gloves, golf gloves, goalkeepers gloves, weight lifting gloves, windsurfing gloves, workout gloves." Applicant contended that the registrant 'made a conscious decision to not list hockey gloves as part of its goods," and furthermore that the cited mark is distinguishable because of the dominant red X. How do you think this came out? In re Kinetixx Golf, LLC, Serial No. 87671054 (December 15, 2021) [not precedential] (Opinion by Judge Peter W. Cataldo).

The Goods: Examining Attorney Scott Kumis submitted third-party website evidence from entities specializing in athletic equipment, offering  athletic gloves and hockey sticks under the same mark: including Dick’s Sporting Goods, Franklin, STX, Academy Sports + Outdoors and Modell’s Sporting Goods. In addition, he provided eleven use-based, third-party registrations for marks covering various athletic gloves and hockey sticks. The Board found that "the totality of the website and third-party registration evidence demonstrates that consumers would readily expect that athletic gloves of various types and hockey sticks could emanate from the same sources." 

The absence of "hockey gloves" in registrant's identification of goods "does not, per se, mitigate in favor of a finding of no likelihood of confusion." 

Channels of Trade: The website evidence demonstrated that the involved goods travel in the same channels of trade to the same classes of consumer. Moreover, in the absence of any limitations in the identifications of goods, the Board must presume that the goods are offered in all customary channels of trade.

The Marks: The fact that the registered mark is stylized is "of little consequence,"  since the propsed mark is in standard character form, and therefore the Board "must consider presentations of that mark regardless of font style, size or color in determining their similarity or dissimilarity." The Board found the marks to be identical in sound and meaning and nearly identical in appearance.   

Applicant argued that this case is similar to In re Covalinski, 113 USPQ2d 1166 (TTAB 2014) (holding confusion unlikely between REDNECK RACEGIRL and design of large, double-letter RR configuration and registered mark RACEGIRL, even when used on in part identical goods) and In re White Rock Distilleries Inc., 92 USPQ2d 1282 (TTAB 2009) (holding VOLTA for vodka infused with caffeine, and TERZA VOLTA and vine shoot design for wines, not likely to cause confusion).

The Board was unmoved, noting that the proposed mark doses not include a prominent design, but merely consists of the work KINETIXX in stylized form.

As a result, we disagree with Applicant that “the over-seized [sic] red “X” (like the sticks in Terza Volta) stands out as the dominant portion as the first thing an observer notices when seeing the mark under the Cited Registration.” (4 TTABVUE 7.) Even in the event consumers first notice the red-colored letter “X” in the cited mark, they will see it as the penultimate letter in the stylized term KINETIXX.

And so, the Board affirmed the refusal to register.

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Text Copyright John L. Welch 2021.