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TMK CO:R:IT:I 458516 VEA

CATEGORY: TRADEMARKS

Kimberly Riter
Commodity Team 706
U.S. Customs (Anchorage, Alaska)

RE: Suspected trademark infringement of "Dallas Cowboys Helmet Design"; Customs ACS Recordation No. 93-00419; Patent and Trademark Office Registration No. 893,942

Dear Ms. Riter:

This letter is in response to your inquiry dated June 29, 1994 which was faxed to this office requesting our opinion on whether an embroidered badge bearing the word "Cowboys" infringes the above referenced trademark which is recorded with U.S. Customs.

FACTS:

The merchandise at issue consists of an embroidered badge with the word "Cowboys" and the letters VMFA-112 on the top and bottom of a circle. The center of the circle contains a star with the figure of a wolf or dog on the inside. The badges are imported and sold to military units. The recorded trademark at issue is owned by the Dallas Cowboys Football Club. It consists of a gray and blue football helmet with a star design on each side.

ISSUE:

Whether the design on the embroidered patch infringes the trademark owned by the Dallas Cowboys Football Club?

LAW AND ANALYSIS:

The test for trademark infringement is whether the suspected mark is likely to cause confusion, or to cause mistake, or to deceive. See, 15 U.S.C. Section 1114. In determining the "likelihood of confusion", courts generally evaluate a variety of factors including: (1) the degree of similarity between the marks; (2) proximity of the products; (3) actual confusion; (4) sophistication of the buyers; (5) the defendant's good faith in adopting the mark; and (6) the strength of the registered mark. Polaroid Corp. v. Polarad Electronics Corp., 287 F. 2d 492 (2d Cir.), cert. denied, 368 U.S. 820 (1961). For purposes of this case, it is only necessary to evaluate the degree of similarity between the design on the imported articles and the recorded mark. Based on a comparison of the two designs, we conclude that the degree of similarity is minimal. Thus, it is unlikely that the imported article is likely to cause confusion, mistake, or to deceive.

The recorded design consists of a football helmet with a star in the middle on each side. The design on the imported embroidered patch contains the word "Cowboys" and the letters VMFA-112 on the top and bottom of a circle. The center of the circle contains a star with the figure of a wolf or dog on the inside. The only similarity between the embroidered patch and the recorded design is that they both contain a star.

The star and helmet design are clearly intended to denote the game of football and is readily associated with the Dallas Cowboys football team. However, the design on the imported patch does not immediately suggest an association with sports or a particular team. The word "Cowboys" is part of the name of the Dallas football team, however, it is not part of the registered and recorded trademark. Also, it is a term in the English language defined as "a hired hand esp. in the Western United States, who tends cattle and performs many duties on horseback." Webster's II New Riverside University Dictionary (1984). The wolf or dog image contained in the star is not readily associated with sports and may also suggest a western connotation.

Since the imported embroidered patches lack the necessary degree of similarity, we conclude that they are not infringing. Finally, the faxed page of other embroidered patches is unclear. If you are interested in obtaining our opinion on these articles, please resubmit them.

HOLDING:

The design on the embroidered patch does not infringe the Dallas Cowboys Helmet Design trademark recorded with U.S. Customs.

John Atwood,Chief
Intellectual Property Rights Branch


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