TTAB
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`....................................................--x
`
`BEAR U.S.A., INC.,
`
`Opposer,
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`v.
`
`DADA CORPORATION,
`
`Opposition No.: 91 176592
`Serial No.: 78/695,990
`
`'
`
`Applicant.
`......................................................-x
`
`BRIEF ON BEHALF OF OPPOSER
`
`Timothy J. Kelly
`FITZPATRICK, CELLA, HARPER
`& SCINTO
`
`30 Rockefeller Plaza
`
`New York, New York 10112
`
`(212) 218-2100
`
`E hereby certify that this correspondence ls belng deposited
`wit!1theUnitedSteteePos1alSeMeeasfirstclassmallln
`an envelope addressed to: commisslonerfor
`P0 Box1451.AIexandtla. VA2231&1451
`
`V
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`-
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`- l
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`llllllllmllllllllllllllllllllllllllllllllllllll
`
`U7-U7-2008
`
`L1
`
`E‘ Palenl
`
`.1. Tr1ajr.;./m M5,: F\‘j1:l_ m 4:34
`
`

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`TABLE OF CONTENTS
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`I.
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`II.
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`INTRODUCTION .
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`1
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`SUMMARY OF THE PROCEEDINGS AND THE RECORD
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD .
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`III.
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`STATEMENT OF THE ISSUE .
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`. 4
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`IV.
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`THE FACTS .
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`A.
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`Bear And Its BEAR Trademarks
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`. 11
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`B.
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`App1icant’s “Pink Bear” Mark .
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`. 12
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`V.
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`ARGUMENT .
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`A. Opposer’s BEAR Trademarks Are Strong Trademarks
`Entitled To A Broad Scope Of Protection .
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`. 12
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`B.
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`There Is A Strong Likelihood Of Confusion
`Between Applicant’s Mark And Opposer’s
`Well-Known BEAR Trademarks .
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`The BEAR Trademarks Are Famous And Strong .
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`1.
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`“Pink Bear” Is Substantially Similar To
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`3.
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`4.
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`The Parties’ Products Are Identical .
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`The Trade Charmels And Potential
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`Purchasers Are The Same .
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`5.
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`There Is No Reported Evidence Of Actual Confusion,
`But There Is No Evidence Of Use By Applicant .
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`Extent Of Potential Confusion .
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`7.
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`The Remaining Factors Favor Opposer .
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`IV.
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`CONCLUSION .
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`

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`TABLE OF AUTHORITIES
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`Cases
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`Page(s)
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`Banjf Ltd. v. Federated Dep’t. Stores, Inc.,
`841 F.2d 486, 6 U.S.P.Q.2d 1187 (2d Cir. 1988)
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`Bear U.S.A., Inc. v. AJ Sheepskin & Leather Outerwear, et al.,
`909 F. Supp. 907-08 (S.D.N.Y. 1995) .
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`Bear U.S.A., Inc. v. Bing Chuan et al.,
`71 F. Supp. 2d 237 (S.D.N.Y. 1999), ajf’d,
`2000 U.S. Applicant LEXIS 12554 (2d Cir. 2000) .
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`Block Drug Co. v. Den-Mat Inc. ,
`17 U.S.P.Q.2d 1315 (T.T.A.B. 1989),
`afl’d, 17 U.S.P.Q.2d 1318 (Fed. Cir. 1990) .
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`CBS, Inc. v. Morrow,
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`708 F.2d 1579, 218 U.S.P.Q. 198 (Fed. Cir. 1983) .
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`Centaur Communications Ltd. v. A/S/M Communications, Inc.,
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`830 F.2d 1217, 4 U.S.P.Q. 1541 (2d Cir. 1987)
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`Charles ofthe Ritz Group Ltd. v. Quality King Distribs., Inc. ,
`832 F.2d 1317, 4 U.S.P.Q.2d 1778 (2d Cir. 1987)
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`Ferrari S.p.A. Esercizio Fabriche Automobili E. Corse v. Roberts,
`944 F.2d 1235, 20 U.S.P.Q.2d 1001 (6th Cir. 1991),
`cert. denied, 112 S. Ct. 3028 (1992)
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`710 F.2d 1565, 218 U.S.P.Q. 390 (Fed. Cir. 1983) .
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`Guardian Life Ins. Co. v. Guardian-Group Gerardi Assocs. Inc.,
`No. 291CV169, 1993 U.S. Dist LEXIS 19520 (27 U.S.P.Q.2d 1465 ) .
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`‘Han Beauty, Inc. v. Alberto-Culver Co.,
`236 F.3d 1333, 57 U.S.P.Q.2d 1557 (Fed. Cir. 2001) .
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`Helene Curtis Indus., Inc. v. Church & Dwight Co.,
`560 F.2d 1325 (7th Cir. 1977) .
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`Hewlett—Packard Co. v. Packard Press Inc. ,
`62 U.S.P.Q.2d 1001 (Fed. Cir. 2002)
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`Humana, Inc. v. Humanomics Inc.,
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`3 U.S.P.Q.2d 1696 (T.T.A.B. 1987)
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`In re E.I. du Pont de Nemours & C0.,
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`476 F.2d 1357, 177 U.S.P.Q. 563 (C.C.P.A. 1973) .
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`. 17
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`In re United States Shoe Corp. ,
`229 U.S.P.Q. 707 (T.T.A.B. 1985)
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`James Burrough Ltd. v. Sign ofthe Beefeater,
`540 F.2d 266, 192 U.S.P.Q. 555 (7th Cir. 1976) .
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`. 18
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`Keebler Co. v. Murray Bakery Prods.,
`9 U.S.P.Q.2d 1736 (Fed. Cir. 1988)
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`Kenner Parker Toys, Inc. v. Rose Art Indus., Inc.,
`963 F.2d 350, 22 U.S.P.Q.2d 1453 (Fed. Cir. 1992) .
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`. 13
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`Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co.,
`799 F.2d 867, 230 U.S.P.Q. 831 (2d Cir. 1986)
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`Phillips Petroleum Co. v. Knox Indus. Corp.,
`277 F.2d 945, 125 U.S.P.Q. 576 (C.C.P.A. 1960) .
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`. 14
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`. 14
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`Recot, Inc. v. M.C. Becton,
`214 F.3d 1322, 54 U.S.P.Q.2d 1894 (Fed. Cir. 2000) .
`Specialty Brands Inc. v. Coffee Bean Distribs., Inc.,
`748 F.2d 669, 223 U.S.P.Q. 1281 (Fed. Cir. 1984) .
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`Tiffany & Co. v. Classic Motor Carriages, Inc.,
`10 U.S.P.Q.2d 1835 (T.T.A.B. 1989)
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`. 12
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`Two Pesos, Inc. v. Taco Cabana, Inc.,
`505 U.S. 763, 23 U.S.P.Q.2d 1081 (1992)
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`Weiss Associates, Inc. v. HRL Associates Inc.,
`902 F.2d 1546, 14 U.S.P.Q.2d 1840 (Fed. Cir. 1990) .
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`. 15
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`-iii-
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`....................................................--x
`
`BEAR U.S.A., INC.,
`
`Opposer,
`
`V.
`
`DADA CORPORATION,
`
`Opposition No.: 91 176592
`Serial No.: 78/695,990
`
`:
`
`:
`
`Applicant
`......................................................-x
`
`BRIEF ON BEHALF OF OPPOSER
`
`I.
`
`INTRODUCTION
`
`This opposition proceeding involves Applicant’s right to register the mark “Pink
`
`Bear”, as shown in Application Serial No. 78/695,990 (hereinafter “Applicant’s mark”) for
`
`various items of clothing including hats, caps and headwear, headbands, jerseys, jackets,
`
`jeans, casual wear namely, shorts, pants, T-shirts, overcoats and shoes (hereinafter
`
`“Applicant’s Goods”) in the face of Opposer’s long-standing rights in the well-known
`
`BEAR trademarks of record in this proceeding and more fully discussed below. The
`
`opposition was filed on April 4, 2007, and is premised upon Opposer Bear U.S.A., Inc.’s
`
`(“Opposer” or “Bear”) belief that it will be damaged by Applicant Dada Corporation’s
`
`(“Applicant”) registration on the Principal Register of the mark “Pink Bear” for
`
`Applicant’s Goods in International Class 25. Applicant’s mark so resembles Opposer’s
`
`well-known and widely used BEAR trademarks previously and continuously used by
`
`Opposer for a wide range of products, that it is likely, when Applicant’s mark is applied to
`
`the goods recited in the opposed application, that such mark will cause confusion or will
`
`

`
`cause mistake or will deceive, thereby causing harm to Bear. Accordingly, pursuant to 15
`
`U.S.C. § 1052(d), Lanham Act § 2(d), registration of Applicant’s mark should be refused.
`
`II.
`
`SUMMARY OF THE PROCEEDINGS AND THE RECORD
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`On August 18, 2005, Applicant filed a trademark application in the United States
`
`Patent and Trademark Office to register “Pink Bear” reciting goods in International Class
`
`25. The application was filed on an “intent-to-use basis” and was subsequently published
`
`for opposition in the Official Gazette of December 5, 2006. Opposer timely filed this
`
`opposition to the application on April 4, 2007.
`
`The record in this proceeding consists of Opposer’s Notice of Opposition;
`
`Applicant’s Answer; Applicant’s trademark application Serial No. 78/695,990 and the file
`
`history therefore; the transcript of the Testimonial Deposition of Thomas Hong taken by
`
`Opposer, together with the Exhibits referenced therein and filed therewith on February 20,
`
`20081’; a Notice of Reliance filed by Opposer on January 19, 2008, attaching Status and
`
`Title copies of the following United States trademark registrations all owned by Opposer:
`
`Trademark
`
`Registration
`No.
`
`Registration
`Date
`
`Goods
`
`BEAR
`
`3038588
`
`38726
`
`BEAR-MAX
`
`2191596
`
`36059
`
`clothing, namely parkas,
`jackets, shirts, hats, headbands
`and footwear
`
`clothing, namely parkas, jackets
`and T-Shirts
`
`1/
`
`Despite a Notice of Deposition having been sent to the offices of Applicant’s
`counselof record, Mr. Do Hyun Park by both First Class Mail and Federal Express,
`counsel did not appear at the deposition of Mr. Hong.
`
`-2-
`
`

`
`BABY BEAR
`
`2286759
`
`36444
`
`BABY BEAR
`
`2559155
`
`37354
`
`BABY BEAR &
`
`2556355
`
`37347
`
`Design
`
`BEAR USA
`
`2559096
`
`37354
`
`&Design
`
`clothing, namely parkas,
`jackets, sweatshirts and shorts
`
`clothing, namely footwear,
`shirts, hats, pants, socks,
`gloves, mittens, scarves and
`caps
`
`clothing, namely footwear,
`shirts, hats, pants, socks,
`gloves, mittens, scarves and
`caps
`
`all purpose athletic, sport and
`duffel bags
`
`BEAR U.S.A. &
`
`2700829
`
`37704
`
`parkas and jackets
`
`Design
`
`BEAR U.S.A. &
`
`2997379
`
`38614
`
`Design
`
`BEAR USA
`
`2623471
`
`37522
`
`(stylized)
`
`BEAR U.S.A. &
`
`2691242
`
`37676
`
`Design
`
`clothing, namely parkas and
`jackets
`
`clothing, namely sweaters,
`gloves, headbands and footwear
`
`clothing, namely parkas,
`jackets, sweaters, sweatshirts, t-
`shirts, pants, jeans, shorts,
`socks, hats, caps, gloves and
`headbands
`
`BEAR
`
`MOUNTAIN
`
`2384568
`
`36780
`
`clothing namely parkas and
`vests
`
`The foregoing trademark registrations are hereinafter collectively referred to as the “BEAR
`
`Trademarks”.
`
`Applicant has filed an Answer essentially denying the allegations set forth in the
`
`Notice of Opposition. Applicant submitted no Affirmative Defenses in connection with its
`
`Answer, has failed to respond to Opposer’s Interrogatories and Document Requests, has
`
`taken no Testimony, and has otherwise made no evidence of record.
`
`

`
`III.
`
`STATEMENT OF THE ISSUE
`
`The only issue presented in this opposition proceeding is whether Applicant’s mark
`
`“Pink Bear” for the goods set forth in the Application is likely to cause confusion or to
`
`cause mistake, or to deceive under 15 U.S.C. § 1052(d), Lanham Act § 2(d), in view of
`
`Opposer’s prior rights in, and widespread use of, its BEAR Trademarks.
`
`Opposer submits that in view of, inter alia (1) the distinctiveness and well-known
`
`nature of Opposer’s BEAR Trademarks; (2) the similarities between Opposer’s BEAR
`
`Trademarks and Applicant’s mark, (3) the identity between the products offered by
`
`Opposer under the BEAR Trademarks and those to be offered by Applicant under its
`
`proposed mark; and (4) the likely overlap in the charmels of trade and consumers, Opposer
`
`has established that there is a likelihood that, when used on the goods set forth in the
`
`application, Applicant’s “Pink Bear” mark will cause confusion, mistake and/or deception.
`
`Thus, Opposer will be damaged by such registration and the Opposition must be sustained.
`
`IV. THE FACTS
`
`A. Bear And Its BEAR Trademarks
`
`Opposer is a manufacturer and seller of clothing and footwear. See Deposition of
`
`Thomas B. Hong (hereinafter “Hong Dep.”) at p. 8.3’ Bear’s products, which include,
`
`among other things, all of the goods covered by the “Pink Bear” application, are sold to
`
`consumers of all ages. 1d,; see also Hong Dep., p. 17. Although Bear’s products originally
`
`appealed primarily to teens and young adults who desired to achieve the “hip-hop” look in
`
`;/
`
`The exhibits referred to in the Hong Deposition are hereinafter referred to as “Hong
`Dep. Exh. _”.
`
`-4-
`
`

`
`the clothes they wear, the high quality and styling of Bear’s products have made them
`
`popular items with twenty-, thirty-, and forty-something outdoor and sports enthusiasts, as
`
`well as with fashion and style-conscious consumers from all walks of life. Hong Dep., p.
`
`17.
`
`Beginning as early as 1993, Bear’s predecessor in interest (the Hong family
`
`business) sold vests and parkas using the trademarks BEAR MOUNTAIN and BEAR.
`
`These products were high quality products made exclusively for the Hong family by
`
`manufacturers in China and Korea and were an immediate success. Hong Dep., p. 6. In
`
`1994, in response to popularity of their products, the Hong family decided to incorporate a
`
`new business under the name Bear U.S.A., Inc., which succeeded to the family’s rights in
`
`the Bear trademarks. Id. Over the years since its inception, Bear has developed and used a
`
`collection of distinctive BEAR trademarks in connection with the manufacture,
`
`distribution, promotion, advertising and sale of apparel of the type listed above. As noted
`
`above, Bear has protected these trademarks by obtaining registrations in the United States
`
`Patent and Trademark Office. The filing and first use dates for each of the BEAR
`
`Trademarks pre-dates the filing of the intent-to-use application at issue in this proceeding.
`
`As a result, Bear has priority.
`
`As can be seen from the registrations referred to above and of record in this
`
`proceeding, the BEAR Trademarks are registered for a variety of goods, including all of the
`
`clothing items listed in the application opposed herein. Copies of photographs of
`
`representative samples of the products sold under the BEAR Trademarks were attached as
`
`Exhibits 3-14 to the Hong Deposition.
`
`

`
`Over the years, Bear has established its products, each of which carry one or more
`
`BEAR Trademarks, as a very popular brand of clothing and footwear. Both the retail trade
`
`and consumers have come to expect that products carrying the BEAR Trademarks are the
`
`high-quality products manufactured solely by Bear, and have come to rely on the presence
`
`of one or more of the BEAR Trademarks on clothing and footwear as a guarantee that these
`
`products are genuine Bear products of the high-quality consumers have come to expect.
`
`See, e.g., Hong Dep. Exhibit 39; Bear U.S.A., Inc. v. A.J. Sheepskin & Leather Outerwear,
`
`etal., 909 F. Supp. 907-O8 (S.D.N.Y. 1995).
`
`'
`
`Bear’s products are sold in local inner-city “mom and pop” stores, in department
`
`stores, and in select retail outlets throughout the United States. Some of these stores
`
`include (or have included) Citi Trends, ABC Variety Stores, Modell’s Sporting Goods,
`
`Bob’s Stores, Lounge, Work In Progress, Macys, Paragon, J.C. Penney, Inc., Nordstrom,
`
`Filenes, Dr. Jay's, Inc., Ramsey Outdoors, The Athlete’s Foot, Sam’s Best Buy (Oklahoma
`
`City, Oklahoma); Wal-Mart (Bentonville, Arkansas), Von Maur (28 stores throughout mid-
`
`West), Traffik (Atlanta, Georgia), Sky Fashion (Grand Prairie, Texas), Glick’s (Illinois),
`
`Fresh Wear (Illinois), Scheel’s (North Dakota), Juan Armando (Rodeo Drive, Beverly
`
`Hills), Goods (Colorado), Lark (Indiana), Tony's (Chicago, Illinois), and Dr. Denim
`
`(Philadelphia, Pennsylvania). Hong Dep., p.p. 16-17. The retail price of Bear’s products
`
`varies with the particular type of product offered, but generally ranges from $20 to $220 at
`
`retail. Hong Dep., p. 18.
`
`Continually, since well prior to the August 2005 filing date of Applicant’s
`
`trademark application, Bear has been and still is marketing, offering for sale and selling
`
`clothing and footwear under the BEAR Trademarks, throughout the United States and the
`
`-5-
`
`

`
`world. Over the years, worldwide retail sales of products carrying one or more of the
`
`BEAR Trademarks have totaled more than $250 million, with more than $110 million in
`
`the United States alone. Hong Dep., p. 19.
`
`Bear has expended considerable effort and expense advertising and promoting its
`
`apparel products and associated BEAR Trademarks. Since at least as far back as 1993,
`
`Bear has invested heavily in advertising and promoting the products carrying the BEAR
`
`Trademarks through various advertising and promotional mechanisms, including direct
`
`advertising and co-op advertising with the various stores in which its products are sold.
`
`See, e.g., Hong Dep., p.p. 20-36. The advertising and promotional efforts undertaken by
`
`Bear have amounted to nearly $7 million over the years, and have included, inter alia,
`
`magazine advertisements, attendance at trade shows, and high-visibility banner placements
`
`(e.g. , bus ads), all of which have prominently featured the BEAR Trademarks for the
`
`purpose of acquainting the public with these marks and with the excellent quality of the
`
`clothing sold under them. Id. See also, Hong Dep. Exhibits 16-19, 21-26, 28, 33-34, 35.
`
`Other promotional activities have included trip give-aways to the Sundance Film Festival
`
`and the American Music Awards. Hong Dep., p.p. 41-2; Hong Dep. Exhibits 42-43.
`
`The well-known nature and popularity of products carrying the BEAR Trademarks
`
`are epitomized by the fact that BEAR products have been requested for use by the
`
`wardrobe managers for several recording artists and celebrities, including Mary J. Blige,
`
`Junior M.A.F.I.A., Ed Lover & Dr. Dre, and have been used on episodes of such television
`
`programs as “The Fresh Prince of Bel Air”; “In The House”; and “New York Undercover.
`
`Hong Dep., p. 40.
`
`

`
`Also as a result of (and as a tribute to) the success of Bear and its products, Bear’s
`
`clothing and footwear have been prominently featured in editorial spreads published in
`
`several national publications including GQ (Gent1emen's Quarterly), THE SOURCE,
`
`SE VENTEEN, DNR, BLAZE, DETAILS, and VIBE. See Hong Dep., p. 39; Exhibits 27, 30-
`
`31, 38, 40, 41. BEAR-branded products have also been worn by celebrities and models,
`
`and have been featured in national advertising campaigns for well-known products such as
`
`Jeep automobiles.
`
`Consumers, retailers and other clothing manufacturers have come to expect that the
`
`clothing and footwear products sold under the BEAR Trademarks originate solely with
`
`Bear. For example, Exhibit 20 to the Hong Deposition is a letter from Joe Mangan, the
`
`Eastern Regional Manager of Columbia Sportswear Company, attesting to the success of
`
`the “Bear” program and products.
`
`Bear has enhanced its image and notoriety through its community efforts in
`
`connection with a program to raise awareness of and prevent youth violence, which
`
`included a link to a web site that contained links to various educational and charitable
`
`organizations that promote non-violence, as well as quotations, statistics, cards that could
`
`be sent via the Internet to promote the cause, a chat room, and the e-mail addresses of each
`
`and every United States senator. Hong Dep., p. 43; Hong Dep. Exh. 44.
`
`In 2005, Bear donated nearly a quarter of a million dollars worth of its “classic”
`
`BEAR jackets to New York City school children, and followed that with a donation of
`
`more than $500,000 worth of apparel in 2006. Hong Dep., p. 44; Hong Dep. Exh. 45.
`
`As a result of Bear’s extensive sales, advertising, and promotion, as well as a result
`
`of its charitable activities, the purchasing public and retail trade have come to know,
`
`-3-
`
`

`
`recognize, and rely upon the BEAR Trademarks. Furthermore, Bear has established
`
`valuable goodwill and secondary meaning in its trademarks through such use, and the
`
`BEAR Trademarks have acquired a recognized preeminence and an excellent reputation in
`
`the minds of consumers and the retail trade.
`
`Bear has been diligent in enforcing and protecting its BEAR Trademarks. When
`
`necessary, Bear has trademark infringement actions against infringers and counterfeiters of
`
`authentic BEAR products. These cases include: Bear U.S.A., Inc. v. A.J. Sheepskin &
`
`Leather Outerwear, Inc. et al., 909 F. Supp. 896 (S.D.N.Y. 1995) (preliminary injunction
`
`granted) (see Hong Dep., p. 48, Exh. 49); Bear U.S.A., Inc. v. Mike Yi, Various John Does,
`
`et al., 95 Civ. 10223 (ex parte temporary restraining order and preliminary injunction
`
`granted; permanent injunction entered); Bear U.S.A., Inc. v. Goose Down USA, Inc., et al.,
`
`96 Civ 0761 (permanent injunction entered); Bear U.S.A., Inc. v. Ben Elias Industries
`
`Corp., 96 Civ. 5515 (preliminary and permanent injunctions entered). See, generally, Hong
`
`Dep., p. 48; Exh. 48).
`
`In Bear U.S.A., Inc. v. William Kim, et al., 97 civ. 0574 (LAK) (S.D.N.Y. 1997),
`
`Bear obtained a preliminary injunction and seizure order in relation to an infringing use of
`
`its BEAR MOUNTAIN trademark, and then proceeded to obtain a jury verdict on
`
`trademark and trade dress infringement, resulting in a permanent injunction and an award
`
`of more than.$l million in damages. Hong Dep., p. 49; Exh. 50. Bear was also successful
`
`in Bear U.S.A., Inc. v. Bing Chuan et al., 71 F. Supp. 2d 237 (S.D.N.Y. 1999), afl’d, 2000
`
`U.S. Applicant. LEXIS 12554 (2d Cir. 2000), where the District Court issued an injunction
`
`enjoining the defendants’ use of the mark BEAR MOUNTAIN on parkas and ordered a
`
`seizure of the goods. The injunction was upheld by the Second Circuit.
`
`-9-
`
`

`
`Bear has also been successful in opposing the applications of numerous other
`
`parties attempting to register marks which Bear believes have the potential to cause
`
`confusion and thereby harm Bear. The records of the Trademark Office reflect that Bear
`
`has been successful in the following oppositions, to wit, the opposition was sustained or the
`
`Applicant deleted International Class 25 goods from its application: Bear U.S.A., Inc. v.
`
`Won Ho Park, Opposition No. 106,693 (application for BEAR TAG U.S.A); Bear U.S.A.,
`
`Inc. v. Bear-Tec, Opposition No. 110, 919 (application for BEARGEAR); Bear U.S.A.,
`
`Inc. v. Hansei Devel. Co., Ltd, Opposition No. 111,371 (application for COLLEGE
`
`BEAR); Bear U.S.A., Inc. v. Blessed Int '1, Inc., Opposition No. 111,451 (application for
`
`NORTH BEAR); Bear U.S.A., Inc. v. American Champion Media, Inc., Opposition No.
`
`117, 798 (application for TACKLE BEAR); Bear U.S.A., Inc. v. Dandy Bear & C0.,
`
`Opposition No. 118,688 (application for DANDY BEAR); Bear U.S.A., Inc. v. Famous
`
`Stars & Straps, Inc. , Opposition No. 91170795 (application for IMABEAR); Bear U.S.A.,
`
`Inc. v. Hungry Bear, Opposition No. 91167965 (application for HUNGRY BEAR); Bear
`
`U.S.A., Inc. v. Berge Wassilian, Opposition No. 91166637 (application for BEAR JIG);
`
`Bear U.S.A., Inc. v. 7040 Entertainment, Inc., Opposition No. 91166386 (application for
`
`CEDDY BEAR); Bear U.S.A., Inc. v. Avi Arad & Associates, LLC, Opposition No.
`
`91165056 (application for RESCUE BEAR); Bear U.S.A., Inc. v. Calcetera de Occidente,
`
`SA. de C. V, Opposition No. 91163369 (application for BLUE BEAR); Bear U.S.A., Inc. v.
`
`Calcetera de Occidente, S.A. de C. V., Opposition No. 91163112 (application for BLUE
`
`BEAR); Bear U.S.A., Inc. v. Lindsay McCrum, Opposition No. 91162606 (application for
`
`BAD BEAR WORLD); Bear U.S.A., Inc. v. Accessory Network Group, Inc., Opposition
`
`No. 91159561 (application for G BEAR & FRIENDS); Bear U.S.A., Inc. v. Fields
`
`-10-
`
`

`
`Caveness, Opposition No. 91159449 (application for CHEDDAR BEAR); Bear U.S.A.,
`
`Inc. v. Sherry Baldwin, Opposition No. 91 156969 (application for BEECHER BEAR);
`
`Bear U.S.A., Inc. v. A.0. Dangerous, Inc., Opposition No. 91154828 (application for
`
`BEAR INSTINCT); Bear U.S.A., Inc. v. Mermaid International, Inc., Opposition No.
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`91153795 (application for JAGG BEAR); Bear U.S.A., Inc. v. The Saltzman Group, LLC,
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`Opposition No. 91153676 (application for POPPY BEAR); Bear U.S.A., Inc. v. Milco
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`Industries, Inc., Opposition No. 91125372 (application for PJ BEAR); Bear U.S.A., Inc. v.
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`Bonnie Bear, Ltd, Opposition No. 91123222 (application for BONNIE BEAR); Bear
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`U.S.A., Inc. v. Edward Kaniewski, Opposition No. 91121829 (application for BEAR
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`MKT); Bear U.S.A., Inc. v. Happy Thoughts, LLC, Opposition No. 91121932 (application
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`for HUMMY BEAR); Bear U.S.A., Inc. v. Sanford J Starkman, Opposition No. 9119672
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`(application for SANDY BEAR); Bear U.S.A., Inc. v. Ryka, Inc., Opposition Nos.
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`91118466 and 91118516 (applications for BEAR MOUNTAIN GEAR BY RYKA); and
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`Bear U.S.A., Inc. v. Dandy Bear & Co., Inc., Opposition No. 91118351 (application for
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`DANDY BEAR). See generally, Hong Dep., p. 47; Exh. 47.
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`B. Applicant’s “Pink Bear” Mark
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`As noted above, Applicant filed its intent-to-use application in August 2005, and
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`thus well after Bear had first started using its BEAR Trademarks. The “Pink Bear” mark
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`purports to cover clothing including hats, caps and headwear, headbands, jerseys, jackets,
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`jeans, casual wear namely, shorts, pants, T-shirts, overcoats and shoes — i.e., goods that are
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`identical to or substantially similar to those on which Bear has long used its BEAR
`Trademarks. Applicant submitted no evidence in support of its case and thus there is no
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`evidence in the record discussing Applicant’s anticipated charmels of trade, its target
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`consumers, the manner in which the mark will be displayed, or the price at which
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`Applicant’s goods will be offered.
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`V.
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`ARGUMENT
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`A. Opposer’s BEAR Trademarks Are Strong
`Trademarks Entitled To A Broad Scope Of Protection
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`Opposer’s BEAR Trademarks are strong, distinctive trademarks that have been
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`extensively used by Opposer to identify itself as the source of the products associated with
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`such trademarks. As a result, the marks is strong and entitled to a wide scope of protection.
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`Kenner Parker Toys, Inc. v. Rose Art Indus., Inc., 963 F.2d 350, 352, 22 U.S.P.Q.2d 1453,
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`1456-57 (Fed. Cir. 1992); Charles ofthe Ritz Group Ltd v. Quality King Distribs., Inc.,
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`832 F.2d 1317, 1321, 4 U.S.P.Q.2d 1778, 1781-1782 (2d Cir. 1987).
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`Strength is often measured preliminarily according to the mark’s categorization as
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`generic, descriptive, suggestive, or arbitrary, classes which generally reflect the increasing
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`level of protection to which the mark is entitled. The dispositive consideration, however, is
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`the mark’s distinctiveness, or “origin-indicating” quality. Banff Ltd. v. Federated Dep ’t.
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`Stores, Inc., 841 F.2d 486, 491, 6 U.S.P.Q.2d 1187, 1191 (2d Cir. 1988). A distinctive
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`mark is not descriptive, rather it is suggestive or arbitrary. Two Pesos, Inc. v. Taco
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`Cabana, Inc., 505 U.S. 763, 23 U.S.P.Q.2d 1081, 1083 (1992) (suggestive or arbitrary
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`marks, “because their intrinsic nature serves to identify a particular source of a product, are
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`deemed inherently distinctive and are entitled to protection”). There can be little question
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`that Opposer’s BEAR Trademarks are inherently distinctive, and thus strong. Further, this
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`conclusion is supported by the fact that Opposer’s marks are registered trademarks. “[T]he
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`rule [is] that registered trademarks are presumed to be distinctive and should be afforded
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`the utmost protection.” Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867,
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`871, 230 U.S.P.Q. 831, 834 (2d Cir. 1986).
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`Finally, in a commercial context, the record here amply demonstrates that
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`Opposer’s BEAR Trademarks are truly strong, well-known marks. Centaur
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`Communications Ltd. v. A/S/M Communications, Inc., 830 F.2d 1217, 1226, 4 U.S.P.Q.
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`1541, 1548 (2d Cir. 1987) (the “strength should be examined in its commercial context”);
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`Guardian Life Ins. Co. v. Guardian-Group Gerardi Assocs. Inc. , No. 291CV169, 1993
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`U.S. Dist LEXIS 19520, at *8, 27 U.S.P.Q.2d 1465, 1467 (D. Conn. Feb. 25, 1993).
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`Specifically, as set forth above, and as attested to by Thomas Hong, Bear has been offering
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`a range of apparel products under the BEAR name throughout the United States for nearly
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`15 years. Hong Dep., p.p. 6-7; 50. Since prior to the time Applicant filed its intent-to-use
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`application Bear has invested more than $7 million advertising and promoting its products
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`sold under the BEAR Trademarks (Hong Dep., p. 36), and through those efforts BEAR®-
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`branded apparel products have been featured in well-known, nationally distributed
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`publications such as GQ and FHM and have made their way onto the TV screen in several
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`well-known, nationally broadcast shows. See, e. g., Hong Dep., p. 40.
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`Moreover, retail sales of products carrying the BEAR Trademarks have amounted
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`to more than $110 million since the early l990’s (see Hong Dep., p. 19), and the BEAR
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`brand has been the subject of substantial unsolicited media coverage. See, e. g. , Hong Dep.,
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`p. 39; Exhs. 38, 40, 41. Bear has further capitalized on its success in promoting its
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`products by sponsoring important community causes and establishing organizations to
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`create a more positive environment in inner city communities. See Hong Dep., p. 44.
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`Because of Bear’s efforts in the community, the volume of sales of its products, its
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`tireless efforts with respect to promotion, and its length of use of its trademarks, not only
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`are the BEAR Trademarks commercially strong, they are very well-known if not famous.
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`See Giant Food, Inc. v. Nation ’s Foodservice, Inc., 710 F.2d 1565, 1570, 218 U.S.P.Q.
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`390, 394 (Fed. Cir. 1983) (evaluating the media exposure, length of use, sales and manner
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`of use to find that “opposer’s marks have acquired considerable fame, which weighs in its
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`favor in determining likelihood of confusion”); In re E.I. Du Pont de Nemours & Co., 476
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`F.2d at 1361 (noting fame of prior mark, as determined by sales, advertising and length of
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`use, a criteria for likelihood of confusion analysis). Through Bear’s efforts, members of
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`the trade and the consuming public have come to know and recognize the BEAR
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`Trademarks and to associate them with the high quality products produced by Bear.
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`It is well settled that a famous trademark is strong and entitled to a broad range of
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`protection. Kenner Parker Toys, 22 U.S.P.Q.2d at 1456. “A mark that is strong because of
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`its fame or its uniqueness, is more likely to be remembered and more likely to be
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`associated in the public mind with a greater breadth of products or services, than is a mark
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`that is weak .
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`.
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`. .” James Burrough Ltd. v. Sign ofthe Beefeater, 540 F.2d 266, 276, 192
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`U.S.P.Q. 555, 563 (7th Cir. 1976). When an opposer’s trademark is a strong, famous
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`mark, its fame can never be of little consequence. “T