In In re Henson, the Trademark Trial and Appeal Board had to decide whether athletic wear and jewelry are related goods. Zackery Henson applied to register the mark LYKAN for “athletic apparel, namely, shirts, pants, shorts, jackets, coats, hats, caps, athletic uniforms, button-down shirts, graphic T-shirts, short-sleeved T-shirts, long-sleeved T-shirts; microfiber performance shirts; women’s apparel, namely, tops, jackets, coats, and pants; socks, underwear.” The Trademark Office refused registration based on a prior registration for the identical LYKAN mark for “watches” and “jewelry.”
The Trademark Office offered several retail websites that sell both athletic apparel and watches. The retail websites were primarily for department stores though. Nevertheless, the Trademark Office found that this evidence demonstrates consumer expect althetic clothing and watches or jewelry to be offered under the same mark.
Mr. Henson argued that the examples the Trademark Office relied on were for large, well-known brands like Macy’s and Adidas. But the TTAB was not persuaded that this meant the average consumer does not expect athletic apparel and watches or jewelry to emanate from the same source. In fact, the TTAB found that this made the relatedness of the goods more rather than less likely.
Finally, the TTAB reiterated that the relatedness of goods determination must be made on the descriptions in the application and registration, not the marketplace reality, and that the international class numbers are irrelevant to the likelihood of confusion analysis. Because Mr. Henson did not narrow his description of goods and did not attempt to the registrant’s description, his athletic apparel and the registrant’s watches and jewelry were deemed to travel in the same channels of trade and appeal to the same class of consumers.
When it comes to assessing relatedness of goods or services, it is necessary to consider prior court decisions because your intuition about what goods or services may be related is too prone to be incorrect.