DANKEES Confusable with YANKEES for Clothing, Says TTAB

The Bronx Bombers stumbled out of the batter's box but still managed to win this opposition to registration of the mark DANKEES for "Beanies; T-shirts; Hats; Hoodies; Socks; Sweatpants; Sweatshirts." The Yankees failed to get their pleaded registrations into evidence, but common law rights in the mark YANKEES saved the day. New York Yankees Partnership v. Matthew Kirschbaum, Opposition No. 91284783 (August 1, 2025) [not precedential] (Opinion by Judge Cheryl S. Goodman).

The Yankees submitted plain copies of their pleaded registrations, but plain copies aren't good enough. Syngenta Crop. Prot. Inc. v. Bio-Chek LLC, 2009 TTAB LEXIS 70, at *9-10 (TTAB 2009) (copy of the certificate of registration issued by the USPTO is not competent evidence to show the “current status of and current title to the registration”). Applicant Kirchbaum admitted that the Yankees own the registrations, but he did not admit that they are "valid and subsisting."

There was no dispute as to priority. Kirchbaum admitted he was aware of the use of the YANKEES mark on clothing at the time he filed his intent-to-use application. The Yankees' testimony and evidence also established prior use of the YANKEES marks on t-shirts, hats, beanies, socks, sweatshirts, sweatpants, and hoodies.

The Board found that the trade channels for the goods overlap, noting that the opposed application contains no limitation on channels of trade or classes of consumers. "Because of the lack of price restrictions in Applicant’s identification, which could include inexpensive clothing items, there is the potential for 'impulse purchasing' of products at a relatively low price point by ordinary consumers."

The Yankees' evidence of fame centered on the baseball team. The Board found that the YANKEES mark "is commercially strong, falling on the higher end of the spectrum." "Considering the volume and nature of the fame evidence, we further find that the fame of the YANKEES mark extends beyond just baseball and transfers to the apparel goods we find most relevant to this proceeding." There was no evidence of any third-party use of YANKEES or similar marks for similar goods and services that lessened the strength of the YANKEES marks.

Turning to the marks, "[g}iven the commercial strength of Opposer’s YANKEES mark, the Trademark Act’s tolerance for similarity between the marks is low." [Strike one]. Moreover, since the goods are identical, a lesser degree of similarity between the marks is necessary to support a conclusion of likely confusion. [Stike two].

The Board found the marks be similar in sound and appearance: 

Both marks share the same the six letters “ANKEES,” differing only by the first letter in each mark (“Y” and “D”) and appear similar. As to similarity of sound, it is reasonable to conclude that the marks may be pronounced similarly because they share a similar structure and could well be accorded a similar sound and cadence. Regardless of the pronunciation of the first letter in each mark, the remainder of the marks will be pronounced the same; Applicant admits the marks rhyme.

As to meaning, "even assuming the marks convey completely different meanings, we find that given the commercial strength of Opposer’s YANKEES marks, the similarities in appearance and sound outweigh any differences in meaning."

And so, the Board sustained the opposition [Strike three].

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TTABlogger comment: Predictable TTAB result. But in the real world? BTW, the mark DANKEES brought to mind the 1950s Broadway musical "DAMN YANKEES." You may recall that the Yankees consistently won the American League pennant in the '50s.

Text Copyright John L. Welch 2025.