Anchor Distributors

Trademark Trial and Appeal Board

Dec 19, 2000

No. 75500144 (T.T.A.B. Dec. 19, 2000)

12/19/00
Paper No. 10
EJS
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Anchor Distributors
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Serial No. 75/500,144
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Arnold B. Silverman of Eckert Seamans Cherin & Mellott, LLC
for Anchor Distributors.
Heather D. Thompson, Trademark Examining Attorney, Law
Office 103 (Michael A. Szoke, Managing Attorney).
_______
Before Simms, Seeherman and Holtzman, Administrative
Trademark Judges.
Opinion by Seeherman, Administrative Trademark Judge:
Anchor Distributors has appealed from the final
refusal of the Trademark Examining Attorney to register
ANCHOR DISTRIBUTORS and design (with the word DISTRIBUTORS
disclaimed), shown below, for “wholesale distributorship
services featuring books and bookstore products.”1
1 Application Serial No. 75/500,144, filed June 11, 1998, and
asserting first use and first use in commerce on June 3, 1998.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/500,144
2
Registration has been refused pursuant to Section 2(d) of
the Trademark Act, 15 U.S.C. 1052(d), on the ground that
applicant’s mark so resembles the mark ANCHOR BOOKS and
design, shown below, and registered (with the word BOOKS
disclaimed) for “fiction and non-fiction books on a variety
of subjects,”2 that, as used in connection with applicant’s
services, it is likely to cause confusion or mistake or to
deceive.
The appeal has been fully briefed; an oral hearing was
not requested.
We affirm the refusal of registration.
In determining whether there is a likelihood of
confusion between two marks, we must consider all relevant
factors as set forth in In re E.I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In any
2 Registration No. 1,646,828, issued June 4, 1991; Section 8
affidavit accepted; Section 15 affidavit received.
Ser No. 75/500,144
3
likelihood of confusion analysis under Section 2(d), two of
the most important considerations are the similarities or
dissimilarities between the marks and the similarities or
dissimilarities between the goods. Federated Foods, Inc.
v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976).
Turning to the marks, we begin with the well-
established principle that there is nothing improper in
stating that, for rational reasons, more or less weight has
been given to a particular feature of a mark, provided the
ultimate conclusion rests on a consideration of the marks
in their entireties. In re National Data Corp., 753 F.2d
1056, 224 USPQ 749 (Fed. Cir. 1985). Here, the dominant
element of both applicant’s and the registrant’s mark is
the word ANCHOR. The descriptive words DISTRIBUTORS (in
applicant’s mark) and BOOKS (in registrant’s mark), both of
which have been disclaimed, merely advise consumers of the
nature of the respective services and goods, and have no
source-identifying significance. Thus, although the words
DISTRIBUTORS and BOOKS change the appearance and sound of
the marks to the extent that these descriptive words look
different and are pronounced differently, these differences
do not distinguish the marks. The dominant word ANCHOR in
both marks is the same. Further, the anchor designs in
Ser No. 75/500,144
4
both marks merely emphasize the connotation of the word
ANCHOR.
Applicant goes into great detail about the specific
differences in the marks. For example, applicant points
out that in its mark there are “distinctive crossbars being
used on the ‘A,’ ‘H,’ and ‘R’ in the word ‘ANCHOR’ with a
highly visible projection to the left in each instance.”
Brief, p. 3. Applicant also notes that the anchor design
is “of a very thick anchor positioned within a vertical
rectangle having a height generally equal to the stacked
words with a line secured to the ring of the anchor.”
Applicant characterizes the cited mark, on the other hand,
as having the words presented in all capital letters with
the initial letter of each word larger than the remaining
words, and as having “a rather slender anchor devoid of
line or rope positioned within an oval geometric border
overlying the two words.” Brief, p. 3.
While we agree that a close side-by-side comparison of
the marks will reveal specific differences between them,
under actual marketing conditions consumers do not have the
luxury to make side-by-side comparisons between marks, and
instead they must rely on hazy past recollections. Dassler
KG v. Roller Derby Skate Corporation, 206 USPQ 255 (TTAB
1980). The differences discussed by applicant in such
Ser No. 75/500,144
5
detail are, in fact, relatively minor, and are not likely
to be noted or remembered by consumers. Even if consumers
should recall, for example, that one mark has a thick
anchor with a rope attached, while the other has an anchor
in an oval, they will view these differences as mere
variations in marks identifying a single source, rather
than as indicating separate sources for the goods and
services.
Accordingly, we find that the marks are very similar
in appearance, pronunciation and connotation, and that they
convey the same commercial impression.
This brings us to a consideration of the respective
goods and services. Applicant’s services are identified as
“wholesale distributorship services featuring books and
bookstore products,” while the identification of goods in
the registration is for “fiction and non-fiction books on a
variety of subjects.” It is not necessary that the goods
or services of the parties be similar or competitive, or
even that they move in the same channels of trade to
support a holding of likelihood of confusion. It is
sufficient if the goods or services are related in some
manner, and/or that the conditions and activities
surrounding the marketing of the goods or services are such
that they would or could be encountered by the same persons
Ser No. 75/500,144
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under circumstances that could, because of the similarity
of the marks, give rise to the mistaken belief that they
originate from the same producer. See In re International
Telephone & Telegraph Corp., 197 USPQ 910 (TTAB 1978).
There is an obvious relationship between applicant’s
services and the registrant’s goods, in that the
registration is for books, and applicant’s distributorship
services feature books. Moreover, companies publish books
and offer book distributorship services, as shown by the
third-party registrations and NEXIS excerpts made of record
by the Examining Attorney. In fact, applicant’s specimens
show that applicant itself both publishes books and offers
wholesale book distributorship services, having used the
mark WHITAKER DISTRIBUTORS for its distribution line and
WHITAKER HOUSE for its publishing division.
We note that applicant’s services are identified as
wholesale distributorship services, and we further note
applicant’s argument that its services are rendered to
knowledgeable bookstore owners. Obviously, some of the
purchasers for applicant’s services and the registrant’s
goods are the same, since bookstore owners buy books, too.
Nor does the fact that these purchasers are knowledgeable
or sophisticated avoid the likelihood of confusion.
Bookstore owners will be aware that companies, such as
Ser No. 75/500,144
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applicant’s, both publish books and render wholesale book
distributor services. They will also be aware that they
may do so under the same or similar marks. Thus, given the
similarity between the marks ANCHOR BOOKS and anchor design
and ANCHOR DISTRIBUTORS and anchor design, these bookstore
owners are likely to believe that the marks identify,
respectively, the book publishing division and the book
distribution division of a single entity. This is
particularly true in view of the fact that ANCHOR appears
to be a strong and arbitrary mark in the book selling
arena; certainly there is no evidence of any third-party
registrations for ANCHOR marks.
Although we have focused our discussion of the duPont
factors on those mentioned by applicant and the Examining
Attorney, we have considered all relevant factors in
reaching our conclusion herein. As stated above, we find
that applicant’s use of ANCHOR DISTRIBUTORS and design for
wholesale distributorship services featuring books and
bookstore products is likely to cause confusion with ANCHOR
BOOKS and design for books.
Decision: The refusal of registration is affirmed.