                NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                  is not citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit

                                      06-1050
                            (Opposition No. 91/156,780)


                                   LEON P. HART,

                                                     Appellant,

                                          v.

                     NEW YORK YANKEES PARTNERSHIP
             and STATEN ISLAND MINOR LEAGUE HOLDINGS, L.L.C.,

                                                     Appellees.

                          __________________________

                             DECIDED: June 9, 2006
                          __________________________


Before MICHEL, Chief Judge, PLAGER, Senior Circuit Judge, and BRYSON, Circuit
Judge.

PER CURIAM.

      Leon P. Hart filed an intent-to-use application with the United States Patent and

Trademark Office to register the mark BABY BOMBERS for clothing and athletic wear.

The New York Yankees Partnership and Staten Island Minor League Holdings, L.L.C.

(collectively, the “New York Yankees” or “Yankees”) filed an opposition, which the

Trademark Trial and Appeal Board (“Board”) sustained. We affirm.

      The New York Yankees oppose Hart’s mark on the basis of their use of the

common law mark BABY BOMBERS in association with the New York Yankees major
league baseball club and with the Yankees’ minor league affiliate, the Staten Island

Yankees baseball club. In order to establish their ground of opposition under section

2(d) of the Lanham Act, 15 U.S.C. § 1052(d), the Yankees must show that they have

priority of use in the mark and that Hart’s mark, when used on the goods set forth in the

application, would create a likelihood of confusion with the Yankees’ mark. See Hoover

Co. v. Royal Appliance Mfg. Co., 238 F.3d 1357, 1359 (Fed. Cir. 2001); 3 J. Thomas

McCarthy, McCarthy on Trademarks and Unfair Competition, § 20.14 (4th ed. 2004).

Because the Yankees’ BABY BOMBERS mark is unregistered, the Yankees must also

show their mark is distinctive in order to establish priority.     See Towers v. Advent

Software, Inc., 913 F.2d 942, 945 (Fed. Cir. 1990).

      We review the Board’s factual findings of priority and distinctiveness for

substantial evidence. See Hoover, 238 F.3d at 1359. Whether a likelihood of confusion

exists is a question of law, which we review without deference, based on underlying

factual findings, which we review for substantial evidence. Id.

      Hart’s priority date is July 23, 2001, the date he filed his intent-to-use application.

The Board found that the New York Yankees had used the term BABY BOMBERS in

promotional materials to refer to their Staten Island minor league affiliate since its

inception in 1999. The Board also found that the term had been used by the press to

refer to both the minor league and major league Yankees teams for several years

before Hart’s priority date. Contrary to Hart’s argument on appeal, the Board’s finding

that the Yankees have priority in the mark did not rely on uses of the term subsequent

to July 23, 2001. There is ample evidence in the record that the term was used in

connection with the Staten Island Yankees prior to 2001. Based on our examination of




06-1050                                      2
the record, we conclude that the Board’s finding that the Yankees have priority in the

BABY BOMBERS mark is supported by substantial evidence.

      The Board also found that the Yankees’ BABY BOMBERS mark was distinctive

rather than merely descriptive of the qualities or characteristics of goods or services.

Hart has alleged no specific error in the Board’s analysis. Having reviewed the record,

we are satisfied that the Board’s finding of distinctiveness is supported by substantial

evidence.

      Finally, the Board determined that the mark BABY BOMBERS for clothing and

athletic wear would be confusingly similar to the Yankees’ identical mark when used in

association with entertainment services involving baseball games.            The Board

considered the factors set forth in In re E.I. DuPont DeNemours & Co., 476 F.2d 1357,

1361 (CCPA 1973), especially the questions of similarity of the marks and whether

Hart’s goods and the Yankees’ services are related. With regard to similarity of the

marks, the Board noted that the marks clearly are identical in appearance and sound.

The Board also found that the meaning and commercial impression of BABY

BOMBERS would be identical to the extent that the mark, when used in connection with

a minor league baseball team and on athletic clothing, suggests an association with the

New York Yankees, who have been referred to as the Bronx Bombers for over seventy

years. With regard to similarity of the parties’ goods and services, the Board found that

Hart’s athletic clothing goods were sufficiently related to the Yankees’ baseball

exhibition services that consumers would likely believe Hart’s products were approved

or licensed by the Yankees. Hart’s arguments have not convinced us that the Board’s

findings are unsupported by substantial evidence or that the Board erred in concluding




06-1050                                    3
that a likelihood of confusion exists between the marks.          Because the New York

Yankees have also established that they have priority in the BABY BOMBERS mark

and that their mark is distinctive, we affirm the decision of the Board.

       We have considered Hart’s additional arguments and find them to be

unpersuasive or irrelevant. Furthermore, because we agree with the Board that the

opposition may be sustained on the basis of the Yankees’ BABY BOMBERS mark, we

need not consider the Yankees’ argument that their opposition may also be sustained

on the basis of their registered mark BRONX BOMBERS.




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