The Board affirmed a Section 2(d) refusal to register the mark DIRTY LAUNDRY for "Hooded sweatshirts; Jackets; Jeans; Pants; Shirts; Shorts; T-shirts," finding a likelihood of confusion with the identical mark registered for "footwear." Not surprisingly, third-party registrations and Internet evidence established that the goods are related. Would you have appealed? In re Telecom (CHINA) Ltd., Serial No. 87440925 (November 6, 2019) [not precedential] (Opinion by Judge Cheryl S. Goodman).
Because the marks are identical, "[a]pplicant's goods need not be closely related to Registrant's goods in order for there to be a likelihood of confusion." There need be only a "viable relationship" been the involved goods.
Examining Attorney Kevin G. Crennan submitted fourteen third-party registrations covering footwear and at least two of the clothing items in applicant's identification of goods. Internet website evidence showed that clothing and footwear are sold together under the same mark: for example, nautica.com and timberland.com. The Board therefore found that the involved goods are "sufficiently related."
Applicant argued that DIRTY LAUNDRY is weak and entitled to a narrow scope of protection, pointing to a recently-cancelled registration for DIRTY LAUNDRY for "luggage," which registration was co-existing with the cited registration for "footwear." Since footwear and luggage are as closely related as footwear and clothing, applicant asserted, its mark should be allowed to co-exist as well.
The Board pointed out once again, however, that "decisions on prior applications do not dictate a particular result." The Board must decide each case on its own record. Moreover, there was no evidence that the registered marks are even in use, and therefore applicant failed to establish either that DIRTY LAUNDRY has any well-established meaning that would render the cited mark weak, or that the mark is "in use in commerce on a commercial scale or that the public has become familiar with it." Moreover, the fact that two registrations co-existed on the register, one for footwear and one for luggage, does not prove that there was no confusion in the marketplace.
And so the Board affirmed the refusal.
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