Monday, April 19, 2010

WYHA? TTAB Affirms 2(d) Refusal of "USWEAR" for Boys Clothing Over "US WEAR" for Adult's Clothing

Would you have appealed this Section 2(d) refusal to register the mark USWEAR for "clothing for adults, namely, jackets and sweaters, not including boys and girls sportswear?" Examining Attorney Amy Alfieri maintained that the mark is confusingly similar to the registered mark US WEAR for "clothing, namely boys and girls sportswear, namely, pants, jumpers, overalls, coveralls and woven and knit shirts and skirts." In re USCANTEEN, INC., Serial No. 76692826 (April 7, 2010) [not precedential].

The Board needed only five pages to affirm the refusal [equaling Applicant's three-page appeal brief and two-page reply brief]. The identity of the marks weighed heavily in favor of the refusal. As to the goods, Applicant attempted to "make hay" out of the exclusionary language in its identification of goods, but the Board was not persuaded.

Rather, both the items in the application and those in the cited registration fall under the general rubric of “clothing.” Furthermore, the examining attorney has presented evidence to show that it is not unusual for the same mark to be registered for clothing items for both adults and children.

The Board noted that adult and children's clothing are found in the same channels of trade: e.g., The Gap, Filene's, Sears, etc. Adults are often the purchasers of clothing for their children, and nothing more than ordinary care would be employed in the purchasing decision.

And so the Board affirmed the refusal.

Text Copyright John L. Welch 2010.


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