Good Sportsman Marketing, LLC

This Opinion is not a
Precedent of the TTAB

Mailed: December 14, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Good Sportsman Marketing, LLC
_____

Serial No. 87217605
_____

Usha Menon, Esq. of D’Ambrosio & Menon PLLC,
for Good Sportsman Marketing, LLC.

Clare Cahill, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.

_____

Before Bergsman, Kuczma and Pologeorgis,
Administrative Trademark Judges.

Opinion by Kuczma, Administrative Trademark Judge:

Good Sportsman Marketing, LLC (“Applicant”) seeks registration on the Principal

Register of the mark SILENCER (in standard characters) for:

Electronic hearing enhancement and protection
independent earbuds; electronic hearing enhancement
devices, namely, earbuds; electronic hearing protection
devices, namely, earbuds, in International Class 9.1

1 Application Serial No. 87217605 was filed on October 27, 2016, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b).
Serial No. 87217605

The Trademark Examining Attorney has refused registration of Applicant’s mark

under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), due to a likelihood of

confusion with the mark SILENCER in Registration No. 5009466 registered for “ear

plugs for noise reduction” in International Class 10 owned by The Allen Company,

Inc.2

When the refusal was made final, Applicant appealed and requested

reconsideration. After the Examining Attorney denied the Request for

Reconsideration, the appeal was resumed. We affirm the refusal to register.

I. Likelihood of Confusion

Our determination of likelihood of confusion under § 2(d) of the Trademark Act is

based on an analysis of all of the probative facts in evidence that are relevant to the

factors bearing on the likelihood of confusion. In re E. I. du Pont de Nemours & Co.,

476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling

Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of

confusion analysis, two key considerations are the similarities between the marks

and the similarities between the goods and/or services. Federated Foods, Inc. v. Fort

Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). “‘The likelihood of

confusion analysis considers all DuPont factors for which there is record evidence,

but may focus . . . on dispositive factors, such as the similarity of the marks and

relatedness of the goods.’” In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744,

1747 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156,

2 Registration No. 5009466 issued on July 26, 2016.

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Serial No. 87217605

64 USPQ2d 1375, 1380 (Fed. Cir. 2002)) (internal quotation omitted). We address

these factors and any others for which Applicant or the Examining Attorney

presented evidence or arguments, including the similarity of the trade channels, the

conditions under which and buyers to whom sales are made, i.e., “impulse” vs. careful,

sophisticated purchasing, and the number and nature of similar marks in use on

similar goods.

A. Similarity of the Marks

Applicant does not contest that its mark is identical to Registrant’s mark in all

respects. The identity of the marks weighs heavily in favor of finding a likelihood of

confusion.

B. Similarity of the Goods

Where the marks of the respective parties are identical, as in this case, the degree

of similarity or relatedness between the goods needed to support a finding of

likelihood of confusion declines. See In re i.am.symbolic, llc, 116 USPQ2d at 1411

(citing In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688-89 (Fed. Cir. 1993)),

aff’d, 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017); In re Davey Prods. Pty Ltd.,

92 USPQ2d 1198, 1202 (TTAB 2009). We find that the requisite relationship between

Applicant’s and Registrant’s goods exists in this case, such that a purchaser, familiar

with Registrant’s product (or vice versa), would believe that Applicant’s product was

another product that was associated with the same source because consumers would

associate electronic hearing enhancement and protection devices with ear plugs

marketed under the identical marks.

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Serial No. 87217605

Registrant’s mark is registered for “ear plugs for noise reduction” (in International

Class 10) which are related to Applicant’s “electronic hearing enhancement and

protection independent earbuds” (in International Class 9). While Registrant’s goods

fall into a different International Class, it is well recognized that the system of

dividing goods into Classes is purely a matter of convenience and that a

determination on the question of likelihood of confusion cannot be restricted by the

artificial boundary created by classification. In re Vic Boff Health and Fitness Aids,

Inc., 189 USPQ 357, 358 (TTAB 1976). The fact that the parties’ goods are not

identical is not determinative. The compared goods need not be identical or even

competitive to find a likelihood of confusion. See On-line Careline Inc. v. Am. Online

Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214

F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000). They need only be “related in

some manner and/or if the circumstances surrounding their marketing are such that

they could give rise to the mistaken belief that [the goods] emanate from the same

source.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d

1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724

(TTAB 2007)).

The Examining Attorney argues that Applicant’s identical mark is placed on

related goods, offering into evidence portions of the following third-party websites in

support:

Earasers.net: showing Earasers offers earbuds and ear
plugs under the same trademark (February 6, 2017 Office
Action at TSDR 8-9);

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Serial No. 87217605

Fynesaudiology.com: showing Fynes Audiology offers
earbuds and ear plugs under the same trademark
(February 6, 2017 Office Action at TSDR 10-13);

Etymotic.com: showing Etymotic offers earbuds and ear
plugs under the same trademark (February 6, 2017 Office
Action at TSDR 14);

Plugfones.com: showing Plugfones offers earbuds and ear
plugs under the same trademark (September 7, 2017 Final
Office Action at TSDR 8-14);

Flareaudio.com: showing Flare offfers earbuds and ear
plugs under the same trademark (September 7, 2017 Final
Office Action at TSDR15-16);

Decibullz.com: showing Decibullz offers earbuds and ear
plugs under the same trademark (September 7, 2017 Final
Office Action at TSDR 17-18);

Plugup.com: showing Plugup.com offers earbuds and ear
plugs under the same trademark (September 7, 2017 Final
Office Action at TSDR 19-22); and

Listeningstack.com: showing The Listening Stack offers
earbuds and ear plugs under the same trademark
(September 7, 2017 Final Office Action at TSDR 23).

The Examining Attorney contends that this evidence supports the relatedness of

Applicant’s and Registrant’s goods because it shows that such goods are commonly

marketed by the same entity under the same mark.

In response, Applicant argues that “any alleged overlap between earphones and

fittings is clearly de minimis,” i.e., it is uncommon for applications in the X-Search

database to include both earbuds and ear plugs. In support, Applicant contends that

the evidence it submits from the USPTO’s X-Search database shows that 879 marks

“have goods associated with ‘earphones’ and ‘fittings’ while the goods of ‘earphones’

alone accounts for 12,783 marks. That is, there are only 7% of the marks that have

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Serial No. 87217605

overlapping goods.” “Specifically, the small number of such registrations shows that

it is quite uncommon for earphones and fittings to emanate from a single source

under a single trademark.”3

To make registrations of record, copies of the registrations or the complete

electronic equivalent (i.e., complete printouts taken from the USPTO’s Trademark

database) must be submitted. In re Ruffin Gaming LLC, 66 USPQ2d 1924, 1925 n.3

(TTAB 2002); In re Volvo Cars of N. Am. Inc., 46 USPQ2d 1455, 1456 n.2 (TTAB

1998); In re Smith & Mehaffey, 31 USPQ2d 1531, 1532 n.3 (TTAB 1994); see also In

re Shipp, 4 USPQ2d 1174, 1176 (TTAB 1987) (the list of third party registrations

submitted by applicant is insufficient to make said registrations of record). Although

Applicant did not properly make the registrations identified in the search report of

record, the Examining Attorney did not advise Applicant of this fact at a point when

the registrations could have been submitted, and therefore we will consider the

information that was listed in the X-search report for whatever probative value it

may have.

The X-Search summaries that Applicant submits are not persuasive for several

reasons. First, only the summary pages for the first 100 marks identified in the

searches were included. According to those summary pages, the vast majority of the

marks identified are subject to pending applications. Applications are evidence only

that the applications were filed on a certain date, not evidence of use or that the

3Applicant’s Brief p. 7 (7 TTABVUE 12) citing to evidence submitted with Request for
Reconsideration at TSDR 31-36.

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Serial No. 87217605

marks, in fact, co-existed. In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1405

(TTAB 2018); In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1745 (TTAB 2018);

Nike Inc. v. WNBA Enterprises LLC, 85 USPQ2d 1187, 1193 n.8 (TTAB 2007).

Additionally, neither “earphones” nor “fittings” are listed in Applicant’s application

or in the cited registration. Thus, Applicant’s exhibits from the X-Search database

attached to its Request for Reconsideration fail to show that Applicant’s goods and

Registrant’s goods are sufficiently unrelated to support a finding that confusion is

unlikely.

The Internet evidence submitted by the Examining Attorney (cited above) shows

that consumers are likely to encounter earbuds and ear plugs in the marketplace

emanating from the same source. Even the Internet evidence submitted by Applicant

for its Walker’s Razor Silencer Earbud on Amazon.com shows ear plugs advertised

on the same page under the section entitled “Sponsored products related to this item”

further supporting the relatedness of earbuds and ear plugs.4 Since earbuds and

earplugs are intended to reduce noise and provide protection from loud noises to the

user’s hearing, are marketed together and are sold by the same entities under the

same marks, Applicant’s and Registrant’s goods are related. Thus, the second du Pont

factor weighs in favor of a finding of likelihood of confusion.

4 Request for Reconsideration at TSDR 17-18.

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Serial No. 87217605

C. Similarity of Trade Channels and Classes of Purchasers

Next we consider established, likely-to-continue channels of trade, the third du

Pont factor. Because the identifications in the application and cited registration have

no restrictions on channels of trade, we must presume that the goods travel in all

channels of trade normal for such goods, and to all the usual customers of them. See

e.g., Coach Servs. v. Triumph Learning, 101 USPQ2d at 1722; In re Jump Designs,

LLC, 80 USPQ2d 1370, 1374 (TTAB 2006); In re Elbaum, 211 USPQ 639, 640 (TTAB

1981) (citing Kalart Co., Inc. v. Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139

(CCPA 1958)).

The only evidence relating to the trade channels through which the goods at issue

travel is the third-party website evidence submitted by the Examining Attorney, as

discussed above. This evidence shows that Applicant’s goods and Registrant’s goods

may be provided via the same virtual marketplace to all relevant classes of purchases,

i.e., individuals interesting in purchasing devices worn in or on one’s ears which

reduce and provide protection from noise. Thus, the respective goods, as identified,

would be provided in the same or at least overlapping channels of trade to the same

or overlapping classes of purchasers. Therefore the third du Pont factor also weighs

in favor of finding a likelihood of confusion.

D. Conditions Under Which and Buyers to Whom Sales Are Made

Next we consider the conditions under which the goods are likely to be purchased,

e.g., whether on impulse or after careful consideration, as well as the degree, if any,

of sophistication of the consumers. Purchaser sophistication or degree of care may

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Serial No. 87217605

tend to minimize likelihood of confusion. Conversely, impulse purchases of

inexpensive items may tend to have the opposite effect. Palm Bay Imports Inc. v.

Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689,

1695 (Fed. Cir. 2005).

Applicant contends that purchasers of its goods carefully consider their purchase

of hearing enhancement earbuds as they are vastly more expensive than the ear plugs

in the cited registration.5 While purchasers may exercise some degree of care in the

purchase of ear plugs, Applicant argues that the degree of care exercised in that

purchase is significantly lower than that exercised in the purchase of Applicant’s

hearing enhancement earbuds. The nature and higher expense of Applicant’s goods,

according to Applicant, ensures that its purchasers would be educated and careful

purchasers. Thus, Applicant concludes that purchasers are not likely to confuse the

sources of basic ear plugs sold at cheaper throwaway prices with expensive earbuds

for hearing enhancement.6

Neither the identification of goods in Applicant’s application nor the goods

identified in the cited registration include any restrictions as to the price point of the

identified goods. We cannot assume, therefore, that the goods are rendered to

different classes of buyers in different marketing contexts at different prices. See In

re Bercut-Vandervoort, 229 USPQ 763, 764 (TTAB 1986) (evidence that relevant

5Applicant’s Brief p. 5 (7 TTABVUE 10); Request for Reconsideration at TSDR 7 citing to
Exhibit A at TSDR 16-20 which is advertising featuring Registrant’s ear plugs and
Applicant’s earbuds.
6 Applicant’s Brief p. 5 (7 TTABVUE 10).

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Serial No. 87217605

goods are expensive wines sold to discriminating purchasers must be disregarded

given the absence of any such restrictions in the application or registration). Rather,

we must assume that the types of buyers vary from the sophisticated to the ordinary

consumer. Ordinary consumers are likely to exercise ordinary care, and may even

buy inexpensive noise reducing hearing devices on impulse. See Recot Inc. v. M.C.

Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000) (“When products are

relatively low-priced and subject to impulse buying, the risk of likelihood of confusion

is increased because purchasers of such products are held to a lesser standard of

purchasing care.”).

Even if Applicant’s goods are more expensive than Registrant’s goods or that some

care would be taken in purchasing Applicant’s goods, it is well-settled that even

careful purchasers who are knowledgeable as to the goods are not necessarily

knowledgeable in the field of trademarks or immune to source confusion arising from

the use of identical marks on or in connection with related goods. In re Davey Prods.

Pty Ltd., 92 USPQ2d 1198, 1204 (TTAB 2009); see also In re Wilson, 57 USPQ2d 1863,

1866 (TTAB 2001) (the sophistication and care of purchasers under the fourth du

Pont factor is not controlling in this case, and it does not render these purchasers

immune to source confusion arising from use of these highly similar marks on related

goods); In re Total Quality Grp., 51 USPQ2d at 1477 (“[E]ven careful purchasers are

not immune from source confusion”); In re Decombe, 9 USPQ2d at 1814-15 (being

knowledgeable and/or sophisticated in a particular field does not necessarily endow

one with knowledge and sophistication in connection with the use of trademarks); In

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Serial No. 87217605

re Hester Indus., Inc., 231 USPQ 881, 883 (TTAB 1986) (even sophisticated

purchasers are not immune from confusion as to source where substantially identical

marks are applied to related products). In view of the foregoing, this factor is neutral.

E. Number and Nature of Similar Marks in Use on Similar Goods

Applicant argues that the cited mark exists in a crowded field of identical and

closely similar marks and that it is well established that where marks are in a

crowded field, each mark is entitled only to a narrow scope of protection. Here,

Applicant contends that “the USPTO register reflects a plethora of identical

SILENCER and closely similar marks” and that “the term ‘SILENCER’ is not unique

to the owner[s] of the cited mark” as it “is used in a wide variety of industries to

describe goods and series that are of particular clarity.”7

Applicant cites three registrations arguing that it is evident from those

registrations that marks containing the term “SILENCER” [sic] are registered for the

same or closely related goods to Applicant’s goods because the remaining portions of

the marks are sufficient to distinguish the marks as a whole from one another.8

However, two of those registrations are now cancelled, leaving just one registration

for the mark SILENCE FOAM which is registered for earplugs for sleeping.9

7 Applicant’s Brief p. 8 (7 TTABVUE 13).
8 Applicant’s Brief p. 9 (7 TTABVUE 14).
9 The three registrations were submitted as Exhibits B-D with the Request for
Reconsideration at TSDR 21-25 (and were previously submitted as Exhibits A-C in the
Response to Office Action at TSDR 6-10): Registration No. 4568683 for SILENCE FOAM (for
earplugs for sleeping); Registration No. 3228668 for THE SOUND OF SILENCE (for noise
reduction headsets) was cancelled on November 17, 2017; and Registration No. 4137396 for
DIGITAL SILENCE (for headphones; headsets for use with telephones, mobile telephones,
MP3 players, portable gaming devices and gaming consoles; communications headsets for

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Serial No. 87217605

Recognizing that such third-party registrations are not conclusive or binding on

the Board, Applicant requests that they be afforded substantial weight. However,

even if the one active registration is considered, the difference between that

registered mark and Applicant’s mark renders that registration of little probative

value. The existing registration is a two-word mark containing the word SILENCE

which engenders a different commercial impression from Applicant’s and Registrant’s

single-word mark SILENCER. Thus, this registered mark SILENCE FOAM is

distinguishable from Applicant’s and Registrant’s marks. Moreover, even if prior

registrations had some characteristics similar to Applicant’s mark, the allowance of

such prior registrations does not bind the Board. In re Nett Designs Inc., 236 F.3d

139, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001).

Next, Applicant cites three marks containing the term SILENCER which are

supposedly used in connection with goods such as gun suppressors and firearms.

Although Applicant cites the respective websites which presumably offer such

products, copies of the websites have not been submitted as evidence.10 Accordingly,

those websites are not in the record as the links Applicant cites are insufficient to

make them of record. See In re Olin Corp., 124 USPQ2d 1327, 1332 n.15 (TTAB 2017)

(“Because the information displayed at a link’s Internet address can be changed or

deleted, merely providing a link to a website is insufficient to make information from

use with telephones, mobile telephones, MP3 players, portable gaming devices and gaming
consoles) was cancelled on December 13, 2018. Even if those cancelled registrations were still
in force, the word SILENCE is positioned as the second word in both marks, giving them
different commercial impressions from Applicant’s and Registrant’s SILENCER marks.
10 Applicant’s Brief p. 10 (7 TTABVUE 15).

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Serial No. 87217605

that site of record.”); In re Change Wind Corp., 123 USPQ2d 1453, 1462 n.8

(TTAB2017) (providing only a web address or hyperlink is insufficient to make such

materials of record). Even if the websites were in the record, the gun suppressors and

firearms which are allegedly identified under the listed marks are very different from

Applicant’s and Registrant’s goods.

Lastly, Applicant contends there is a co-existence of registered marks containing

the term SILENCER for a variety of goods further proving that SILENCER is not

unique to the owner of the cited mark. Applicant argues that when the Board

exercises its discretion in this case, it should at least afford the following four

registrations for SILENCER in International Class 9 “substantial weight,” citing

Registration Nos. 1778764 (for power supply for personal computers), 3352055 (for

internal cooling fans for computers; power supplies; voltage stabilizing power supply),

1350377 (for centrifuges for hospitals, clinics and private laboratories) and 3153673

(for sunglasses).11

In view of these four registered marks owned by three separate owners, Applicant

maintains that the cited Registration is entitled to a narrow scope of protection since

many entities have used SILENCE-based marks in connection with computer

software and other disparate goods in International Class 9. Applicant concludes that

11Applicant’s Brief pp. 10-11 (7 TTABVUE 15-16). Although Applicant identifies such as
“attached” Exhibits E-H, such Exhibits were submitted as Exhibits E-H to the Request for
Reconsideration at TSDR 26-30. Registration Nos. 1778764 and 3352055 are owned by the
same owner, Firepower Technology, Inc.

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Serial No. 87217605

these cited marks should be given a very narrow scope of protection, in light of their

coexistence, “barring registration of only virtually identical marks.”12

We disagree. These four registrations identify goods that are totally unrelated to

the goods at issue and, therefore, have no probative value regarding the strength or

weakness of the cited mark. See In re Integrated Embedded, 120 USPQ2d 1504, 1512

(TTAB 2016) (citing Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1740

(TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992)); In re Melville Corp., 18

USPQ2d 1386, 1388-89 (TTAB 1991) (“Registrations for goods unrelated to the

clothing field are irrelevant to our discussion”); SBS Prods. Inc. v. Sterling Plastic &

Rubber Prods. Inc., 8 USPQ2d 1147, 1149 n.6 (TTAB 1988) (“[E]ven if evidence of

such third party use were submitted, it would be of no aid to respondent herein where

the third-party usage was for goods unrelated to either petitioner’s skin care products

or respondent’s stuffing box sealant”); Anderson, Clayton Co., v. Christie Food Prods.

Inc., 4 USPQ2d 1555, 1557 n. 7 (TTAB 1987) (“The other third-party registrations

relating to marks in unrelated fields are of no probative value”).

Notwithstanding the foregoing, the “existence of [third party] registrations is not

evidence of what happens in the market place or that customers are familiar with

them nor should the existence on the register of confusingly similar marks aid an

applicant to register another likely to cause confusion, mistake or to deceive.” AMF

Inc. v. Am. Leisure Prods., Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973). See

12 Applicant’s Brief p. 12 (7 TTABVUE 17).

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Serial No. 87217605

also In re i.am.symbolic, 123 USPQ2d at 1751; In re Integrated Embedded, 120

USPQ2d at 1512.

Thus, there is insufficient evidence of the number and nature of similar marks in

use on similar goods to draw the conclusion made by Applicant that Registrant’s mark

is so weak that consumers would be confused.13 Accordingly, this du Pont factor is

neutral.

II. Conclusion

We have considered all of the arguments and evidence of record, including those

not specifically discussed herein, and all relevant du Pont factors. Because the marks

at issue are identical and since we have found that Applicant’s identified goods are

related to Registrant’s goods and that they would move in the same or overlapping

trade channels and would be offered to the same or overlapping classes of purchasers,

we conclude that Applicant’s mark, as used in connection with the goods identified in

the application, so resembles the identical cited mark as to be likely to cause

confusion or mistake, or to deceive under Section 2(d) of the Trademark Act.

Decision: The refusal to register Applicant’s mark SILENCER under § 2(d) of the

Trademark Act is affirmed.

13 Applicant’s Brief pp. 12-13 (7 TTABVUE).

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